Dedmon v. Chelsea Food Services et al

Filing 75

ORDER denying 46 Defendants Motion for Summary Judgment ; and This case remains set for trial beginning September 28, 2015 at 8:30 a.m. in Courtroom A801 with a Final Trial Preparation Conference set for 2:30 p.m. on September 4, 2015, by Judge William J. Martinez on 2/12/2015.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-0005-WJM-NYW
CAROLYN DEDMON,
Plaintiff,
v.
CONTINENTAL AIRLINES, INC.,
UNITED AIRLINES, INC., and
UNITED CONTINENTAL HOLDINGS, INC.,
Defendants.

ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff Carolyn Dedmon (“Plaintiff”) brings this action against Defendants
Continental Airlines, Inc., United Airlines, Inc., and United Continental Holdings, Inc.
(collectively “Defendants”) for injuries she suffered when she fell on Defendants’
property. (Am. Compl. (ECF No. 9).) Before the Court is Defendants’ Motion for
Summary Judgment (“Motion”). (ECF No. 46.) For the reasons set forth below, the
Motion is denied.
I. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient

disagreement to require submission to a jury or conversely, is so one-sided that one
party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Serv., 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. FACTUAL BACKGROUND
Chelsea, an airline catering company that is a subsidiary of United, occupies and
operates the Chelsea facility at Denver International Airport. (Igo Aff. (ECF No. 46-1) ¶
2.) Frontier Airlines sublets one area inside the Chelsea facility for its food service
operations. (Id.) At all times relevant herein, Plaintiff was employed by Frontier Airlines
and worked at the Chelsea facility refilling catering carts used on Frontier flights. (Pl.’s
Dep. (ECF No. 46-2) pp. 7-10.)
On October 23, 2010, Plaintiff was at work when she left Frontier’s catering area
and walked down the hall to retrieve a bottle of Gatorade from the facility’s employee
cafeteria. (Pl.’s Dep. at 43, 57.) In the hallway ahead of her, Plaintiff saw two caution
signs that read “Wet Floor”. (Id. at 44, 48.) Plaintiff stopped short of the signs, examined
the floor, and noticed a large spill that extended across the entire hallway. (Id. at 44, 5152, 77-78.) It appeared to Plaintiff that the spill had just occurred. (Id. at 52, 78-79.)
Plaintiff was in a hurry to retrieve her Gatorade before the next round of catering
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carts arrived, so she chose to walk across the spill rather than take an alternate route
that would have required her to exit the building, walk across the loading dock, and
reenter through the far side. (Pl.’s Dep. at 84-85; Igo Dep. (ECF No. 54-1) pp. 108,
198-200.) Plaintiff surveyed the spill and determined that she could cross one side of
the hallway that appeared less wet. (Pl.’s Dep. at 76-77, 84-85.) Plaintiff did not feel
the substance on the floor before she decided to cross the spill. (Id. at 74.)
Plaintiff took one step forward onto the wet substance, slipped, and fell to the
ground. (Id. at 54.) After the fall, Plaintiff had trouble getting back to her feet because
the spilled substance was so slippery. (Id. at 64-65, 74-75.) Based on the liquid that
remained on her hands, Plaintiff felt like the spilled substance was “some kind of oil.”
(Id.) The spill occurred in a hallway through which used cooking oil was transported
from the hot food production area to the disposal area. (Igo Dep. (ECF No. 54-1) pp.
111-13.)
On these facts, Plaintiff brings a claim against Defendants under Colorado’s
Premises Liability statute, Colo. Rev. Stat. § 13-21-115. (ECF No. 9.) Defendants filed
their Motion for Summary Judgment on July 14, 2014. (ECF No. 46.) Plaintiff filed her
Response (ECF No. 54), and Defendants filed their Reply (ECF No. 59). This matter is
now ripe for review.
III. ANALYSIS
Defendants move for summary judgment on two bases: (1) Plaintiff has failed to
show a genuine dispute of fact as to whether Defendants exercised reasonable care to
protect against a danger on their property; and (2) Defendants have shown that they are
entitled to summary judgment on their affirmative defense of assumption of risk. (ECF
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No. 46.) The Court will address each argument in turn below.
A.

Reasonableness of Defendants’ Actions
To prevail on a premises liability claim, a plaintiff must show: (1) breach of a duty

to use reasonable care to protect against a danger on the property; and (2) actual or
constructive knowledge of the danger. Sofford v. Schindler Elevator Corp., 954 F.
Supp. 1459, 1461 (D. Colo. 1997). Defendants admit that they knew of the spill, so the
second element is not at issue. With regard to the first element, Defendants contend
that Plaintiff has failed to show that their conduct fell below a reasonable standard of
care.
“[R]easonable care is measured by what a person of ordinary prudence would or
would not do under the same or similar circumstances.” Lombard v. Colo. Outdoor Ed.
Ctr., 187 P.3d 565, 574 (Colo. 2008). Defendants contend that there is no genuine
dispute as to whether their response to the spill was reasonable. (ECF No. 46 at 9-10.)
Defendants point out that, after being notified of the spill, their porter put up two “Wet
Floor” caution signs near the spill, which were present when Plaintiff approached the
area. (Id. at 8.) Defendants contend that they followed their own cleaning protocol,
which complies with industry standards, and therefore no reasonable juror could find
that their response to the spill was unreasonable. (Id. at 7-8.)
Plaintiff argues that, even assuming that Defendants’ actions were reasonable if
the spilled substance was water, because the spill was an oil substance, placement of
two signs was not sufficient to meet Defendants’ duty in this case. (ECF No. 54 at 9.)
The bulk of Plaintiff’s argument rests on her belief that the spill was oil rather than water
or some other less slippery substance. (Id.) In response, Defendants contend that
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there is no evidence that the spill was oil and therefore no genuine dispute of material
fact. (ECF No. 59 at 13.) Defendants contend that the “only evidence that the
substance was cooking oil was Plaintiff’s self-serving hearsay statement that she heard
an unknown Chelsea employee say that cooking oil had been spilled.” (Id. at 12.)
While this statement appears to be the only direct evidence on this point, and the Court
agrees that it may be inadmissible hearsay, the Court finds that there is adequate
admissible circumstantial evidence to permit a reasonable juror to conclude that the spill
was an oily substance rather than water. For example, Plaintiff testified that although
she “had no firsthand knowledge” as to the substance of the spill, she put her hands out
to break her fall and afterwards noticed that the substance on her hands felt like some
kind of oil. (Pl.’s Dep. at 64-65, 74-75.) Plaintiff also testified that the slipperiness of the
substance made it difficult for her to regain a standing position after she fell. (Id.) Also,
Anthony Igo testified that the spill occurred in the hallway used to transport used
cooking oil from the hot food production area to the disposal area. (Igo Dep. at 111-13.)
From this evidence, a reasonable juror could conclude that the substance spilled on the
floor was a slippery oil.
The fact that a juror could conclude that the spill was an oily substance affects
whether Defendants’ response to the spill was reasonable. The Court finds that a juror
could reasonably conclude that, while placing two warning signs near a spill of water or
some other relatively non-slippery substance may be sufficient to meet a landowners’
burden, these minimal actions are not sufficient if the spill is known to be oil or some
other slippery substance. As Plaintiff points out, Defendants could have stationed
someone at the spill to warn of the danger, or posted a sign which indicated that the
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spill was an oily substance.
The Court notes that most of Defendants’ brief focuses on Plaintiff’s
actions—Plaintiff saw the signs and the spill on the floor, Plaintiff deliberately chose to
continue walking across the spill, and Plaintiff could have avoided the spill by taking an
alternate route. (See ECF No. 4-7.) However, Defendants have an obligation to show
that their response to the spill was reasonable regardless of the propriety of Plaintiff’s
actions. See Sofford, 954 F. at 1461. Whether Plaintiff acted unreasonably or assumed
some risk by choosing to walk across the spill is relevant to Defendants’ affirmative
defenses, but is not a reason to grant summary judgment in favor of Defendants on the
premises liability claim.
Ultimately, the reasonableness of a party’s actions is typically a question of fact
to be decided by the fact-finder and is not generally appropriate for summary
adjudication. See Concho Constr. Co. v. Olka. Natural Gas Co., 201 F.2d 673, 675
(10th Cir. 1953) (reversing district court’s grant of summary judgment because
reasonableness is a jury question). The Court concludes that Plaintiff has shown a
genuine dispute of material fact as to whether the spill was an oily substance, and that
this in turn makes the reasonableness of Defendants’ actions a question to be resolved
by the jury. Accordingly, the Court denies Defendants’ Motion on this basis.
B.

Assumption of Risk
Defendants also move for summary judgment on the grounds that Plaintiff has

failed to show a genuine dispute of fact as to their affirmative defense of assumption of
risk. (ECF No. 46 at 11-12.) Specifically, Defendants contend that Plaintiff knowingly
and unreasonably chose to cross the spill, and that this makes her liable for the fall
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rather than Defendants. (Id.)
In response, Plaintiff argues that assumption of risk is not an affirmative defense
to a premises liability claim. (ECF No. 54 at 12.) While this was an open question
under Colorado law after Vigil v. Franklin, 103 P.3d 322 (Colo. 2004), it now appears
settled that affirmative defenses which do not alter a landowner’s duty—such as
contributory negligence and assumption of risk—may be asserted against a premises
liability claim. See Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 190 (Colo. 2009)
(landowner can assert comparative negligence as defense to premises liability claim);
Tucker v. Volunteers of Am., 211 P.3d 708, 711 (Colo. App. 2008) (holding that the
premises liability act does not “abrogate statutorily created defenses” such as
“comparative negligence and assumption of the risk.”). Thus, the Court concludes that
Defendants are permitted to assert assumption of risk as an affirmative defense to
Plaintiff’s premises liability claim.
However, Defendants have not shown that they are entitled to summary
judgment on this defense. Under Colorado law, “a person assumes the risk of injury to
damage if he voluntarily or unreasonably exposes himself to injury or damage with
knowledge or appreciation of the danger and risk involved.” Colo. Rev. Stat. § 13-21111.7. The Court finds that Plaintiff has shown a dispute of fact as to whether she knew
or appreciated the full extent of the danger of the spill on the floor. As set forth above, a
reasonable juror could conclude from the circumstantial evidence that the spill was an
oily substance, and nothing on the Defendant’s “Wet Floor” signs notified her of the
nature of the spill. Accordingly, the Court finds that there is a genuine dispute of
material fact as to whether Plaintiff knew or appreciated the full extent of the danger she
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faced by choosing to walk across the spill.
Colorado courts have held that assumption of risk “poses a question for the trier
of fact” and is not ordinarily appropriate for summary judgment. Wills v. Bath
Excavating & Constr. Co., 829 P.2d 405, 409 (Colo. App. 1991). Combining the factual
dispute over the nature of the spilled substance with the strong preference that
assumption of risk be decided by the jury, the Court finds that Defendants have failed to
show that summary judgment is appropriate on this basis.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Motion for Summary Judgment (ECF No. 46) is DENIED; and

2.

This case remains set for trial beginning September 28, 2015 at 8:30 a.m. in
Courtroom A801 with a Final Trial Preparation Conference set for 2:30 p.m. on
September 4, 2015.
Dated this 12th day of February, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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