Van Alstine v. Costco Wholesale Corporation

Filing 32

ORDER by Chief Judge Philip A. Brimmer on 9/25/2024, re: 9 Defendant Costco Wholesale Corporation's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) is GRANTED. ORDERED that plaintiff's first claim for relief is DISMISSED witho ut prejudice. ORDERED that plaintiff's second claim for relief is DISMISSED with prejudice. ORDERED that Plaintiff, Gulbin Van Alstine's Unopposed Motion for Hearing on Defendant Costco Wholesale Corporation's Motion to Dis miss [Docket No. 23 ] is DENIED as moot. ORDERED that Defendant's Motion for Summary Judgment [Docket No. 28 ] is DENIED as moot. ORDERED that, on or before October 15, 2024, plaintiff may file a motion to amend the complaint. (dgumb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 23-cv-03274-PAB-MEH
GULBIN VAN ALSTINE,
Plaintiff,
v.
COSTCO WHOLESALE CORPORATION,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on Defendant Costco Wholesale
Corporation’s Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) [Docket No. 9]. Plaintiff
Gulbin Van Alstine filed a response, Docket No. 17, and defendant Costco Wholesale
Corporation (“Costco”) filed a reply. Docket No. 18. The Court has jurisdiction pursuant
to 28 U.S.C. § 1332.
I. BACKGROUND 1
On December 23, 2022, Ms. Van Alstine visited a Costco warehouse with her
husband to renew their Costco membership and shop for necessities. Docket No. 5 at
2, ¶ 11. After receiving a replacement Costco membership card, the two approached
the check-out aisles, id., ¶ 13, where Ms. Van Alstine slipped on an unknown liquid on
the epoxied concrete floor, which liquid caused the floor to become wet and slippery,
and injured her knee. Id., ¶ 14. There were no signs or other indications warning
The following facts are taken from Ms. Van Alstine’s complaint, Docket No. 5,
and are presumed true for the purpose of ruling on defendant’s motion to dismiss.
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customers about the wet and slippery floor. Id. at 3, ¶ 15. Ms. Van Alstine did not see
or detect the wet and slippery floor until she fell because the wet and slippery conditions
were not readily observable. Id., ¶ 16. Shortly after Ms. Van Alstine slipped and fell, a
Costco employee cleaned up the liquid on the floor with paper towels. Id., ¶ 17. Ms.
Van Alstine’s husband immediately took Ms. Van Alstine to the hospital as a result of
her fall. Id., ¶ 19. She suffered a severely broken left knee, which required extensive
medical intervention, including surgery, and requires ongoing medical treatment. Id.,
¶ 20. Costco was the landowner of the premises where Ms. Van Alstine fell. Id., ¶ 24.
In her complaint, Ms. Van Alstine brings two claims, one for statutory premises
liability under the Colorado Premises Liability Act (“CPLA”), Colo. Rev. Stat. § 13-21115, and the other for common law negligence. Id. at 5–7, ¶¶ 42–60.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to
accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th
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Cir. 1994) (“we are not bound by conclusory allegations, unwarranted inferences, or
legal conclusions”).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
III. ANALYSIS
Costco argues that Ms. Van Alstine’s negligence claim should be dismissed
because Costco admits that it is a landowner under the CPLA. Docket No. 9 at 4.
Costco states that a “landowner cannot be simultaneously liable under both the CPLA
and a common law negligence theory.” Id. (citing Reid v. Berkowitz, 370 P.3d 644, 648
(Colo. App. 2016); Vigil v. Franklin, 103 P.3d 322, 329 (Colo. 2004)). Under Colorado
law, “[i]t is well established that subsection 13–21–115(2) abrogates common law
negligence claims against landowners for injuries caused by the conditions, activities, or
circumstances on a landowner’s premises” and that the CPLA “provide[s] an exclusive
remedy against a landowner” for such injuries. Reid, 370 P.3d at 648. Ms. Van Alstine
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responds that, “[w]ith respect to Plaintiff’s negligence count, . . . Costco’s admission that
it is a landowner under the CPLA is sufficient that Plaintiff agrees to dismiss her claim
for common law negligence.” Docket No. 17 at 2. Costco has admitted that it is the
landowner of the premises where Ms. Van Alstine fell, and the Court will therefore
dismiss Ms. Van Alstine’s negligence claim.
Second, Costco argues that Ms. Van Alstine’s allegations in her complaint fail to
establish the elements of her CPLA claim. Docket No. 9 at 4. To properly plead the
elements of her CPLA claim, Ms. Van Alstine must allege facts that show that: (1)
Costco had actual or constructive knowledge of the danger; (2) Costco failed to exercise
reasonable care; (3) proximate cause; and (4) damages. 2 Criss v. United Airlines, Inc.,
No. 20-cv-1670-WJM-NRN, 2022 WL 672484, at *3 (D. Colo. Mar. 7, 2022) (citing Colo.
Rev Stat. § 13-21-115(3)(c)(I); Lombard v. Colorado Outdoor Educ. Ctr., Inc., 187 P.3d
565, 575 (Colo. 2008)).
Whether a landowner “actually knew or should have known” about a danger may
be satisfied by showing either actual or constructive knowledge. Estrada v. Texas
Roadhouse Holdings, LLC, No. 18-cv-02937-MEH, 2020 WL 869857, at *3 (D. Colo.
Feb. 21, 2020) (citing Lombard, 187 P.3d at 571–72). “Constructive knowledge is the
knowledge that one exercising reasonable diligence should have.” Id.; see also

Ms. Van Alstine asserts that, to plead her CPLA claim, she must allege facts
that show that: “(1) the landowner actually knew or should have known of a danger on
the premises and (2) the landowner’s action or inaction constituted an unreasonable
failure to exercise reasonable care to protect the plaintiff from that danger.” Docket No.
17 at 4 (citing Lombard, 187 P.3d at 567) (internal quotations omitted). The elements
Ms. Van Alstine identifies in her response are consistent with the elements listed in
Criss, 2022 WL 672484, at *3 (citing Lombard, 187 P.3d at 575).
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Clemmons v. FC Stapleton II, LLC, 485 F. App’x 904, 908 (10th Cir. 2012)
(unpublished) (“Before there can be liability for injuries resulting from a dangerous
condition, it must be shown . . . that the defendant had constructive knowledge of the
condition and failed to correct it ([i.e.] that the condition had existed for such a period of
time that the defendant, in the exercise of due care, could have and should have known
of it).” (quoting Bodeman v. Shutto Super Markets, Inc., 593 P.2d 700, 701 (Colo.
1979)). “[A] dangerous condition should have been known to exist if it is established
that the condition had existed for such a period of time and was of such a nature that, in
the exercise of reasonable care, such condition and its dangerous character should
have been discovered.” Estrada, 2020 WL 869857, at *3 (quoting State v. Moldovan,
842 P.2d 220, 229 (Colo. 1992)).
Costco claims that Ms. Van Alstine has not pled facts that suggest that Costco
knew of the slippery conditions near the check-out aisles. Docket No. 9 at 4–5. Costco
argues that Ms. Van Alstine’s complaint also fails to plead facts sufficient to show that
Costco had constructive knowledge of the floor’s condition. Id. at 5. It asserts that the
alleged facts show that, even exercising reasonable care, Costco would not have known
about the slippery floor. Id. Specifically, Costco relies on Ms. Van Alstine’s allegation
that she did not see or detect the slippery condition of the floor because such condition
was “not readily observable.” Id.; Docket No. 5 at 3, ¶ 16. Finally, Costco maintains
that, because Ms. Van Alstine’s complaint lacks specifics regarding the substance on
the floor, such as what the substance was, where the substance came from, and how
long the substance was on the floor before her fall, Ms. Van Alstine has failed to plead
non-conclusory facts to show that she is entitled to relief. Docket No. 9 at 5.

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Ms. Van Alstine argues that she has adequately pled that Costco should have
known about the dangerous spill and that Costco’s “inaction represented an
unreasonable failure to exercise reasonable care.” Id. 4–6 (citing Lombard, 187 P.3d at
567). She maintains that she has pled facts which show that: (1) “[t]he spill was on the
floor, in an area trafficked by invitees such as Plaintiff,” (2) “Costco failed to clean up the
spill to prevent slips and falls such as Plaintiff’s,” and (3) “Costco had a duty to keep the
floor clear of dangerous spills.” Id. at 5–6. Accordingly, Ms. Van Alstine argues that
she has pled facts that show that Costco’s failure to clean the floor was unreasonable.
Id. at 6.
Ms. Van Alstine does not allege that Costco had actual knowledge of the wet and
slippery condition of the floor. As such, the allegations in Ms. Van Alstine’s complaint
must plausibly allege that Costo had constructive knowledge of the wet and slippery
floor because, in the exercise of due care, Costco could have and should have known of
it. Clemmons, 485 F. App’x at 908. “The location of the dangerous condition, the
opportunity of the defendant to determine that the condition exists, and the likelihood
that a ‘momentary creation’ of the condition occurred are all factors which must be
considered” in determining whether Costco had constructive knowledge of the slippery
condition of the floor. Bodeman, 593 P.2d at 701. Ms. Van Alstine alleges that the
liquid that caused the floor to become wet and slippery was located near the check-out
aisles. Docket No. 5 at 2, ¶ 13. Ms. Van Alstine alleges no facts as to how long the
liquid had been on the floor or whether Costco had the opportunity to identify the wet
and slippery condition of the floor before Ms. Van Alstine fell. Ms. Van Alstine alleges

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no facts from which an inference can be drawn in favor of either party as to whether the
liquid that caused the floor to become wet and slippery was a “momentary creation.”
Moreover, “the very nature of the defect” may be considered in determining
whether Costco had constructive knowledge of the floor’s wet and slippery condition.
Anderson v. Dunton Mgmt. Co., 865 P.2d 887, 890 (Colo. App. 1993) (citing Bodeman,
593 P.2d at 700). The allegations in Ms. Van Alstine’s complaint describe the
substance that caused the floor to become wet and slippery as an “unknown liquid.”
Docket No. 5 at 2, ¶ 14. Ms. Van Alstine alleges that “the wet and slippery conditions
were not readily observable.” Id. at 3, ¶ 16. Taken together, the allegations in Ms. Van
Alstine’s amended complaint permit the Court to infer no more than the mere possibility
that Costco could have known about the liquid on the floor. The complaint fails to
plausibly allege that, through due diligence, Costco should have known about the wet
and slippery condition of the floor. Moreover, Ms. Van Alstine provides no authority for
the proposition that the nature of Costco’s business requires it to assume the existence
of dangerous conditions and remedy them, even when they are “not readily observable.”
As such, Ms. Van Alstine has failed to adequately allege the first element of her CPLA
claim, namely, that Costco had actual or constructive knowledge of the danger. Criss,
2022 WL 672484, at *3. Accordingly, the Court will grant Costco’s motion to dismiss.
Ms. Van Alstine argues that, “[i]n the alternative,” she should be granted leave to
amend her complaint, “providing a more specific statement supporting Plaintiff’s
contention that Defendant’s conduct was unreasonable, and alleging that the hazard in
question was either created by Defendant and/or permitted to remain for an
unreasonable period of time.” Docket No. 17 at 7. “Merely suggesting [s]he should be

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allowed to amend if the judge concludes [her] pleadings are deficient is insufficient” for a
plaintiff to be entitled to amend a complaint. Requena v. Roberts, 893 F.3d 1195, 1204
n.3 (10th Cir. 2018) (quoting Garman v. Campbell Cty. Sch. Dist. No. 1, 630 F.3d 977,
986 (10th Cir. 2010)); see also D.C.COLO.LCivR 7.1(d) (a “motion shall be filed as a
separate document”). Ms. Van Alstine must, instead, “file[] a written motion for leave to
amend, giving adequate notice of the basis of the proposed amendment,” Requena, 893
F.3d at 1204 n.3 (citation omitted), and must attach to her motion a copy of her
proposed amended pleading. D.C.COLO.LCivR 15.1(b). Despite Ms. Van Alstine not
following the proper procedures, the Court will give her an opportunity to file a motion
for leave to amend.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendant Costco Wholesale Corporation’s Motion to Dismiss
Pursuant to F.R.C.P. 12(b)(6) [Docket No. 9] is GRANTED. It is further
ORDERED that plaintiff’s first claim for relief is DISMISSED without prejudice.
It is further
ORDERED that plaintiff’s second claim for relief is DISMISSED with prejudice. 3
It is further

The Court dismisses plaintiff’s second claim with prejudice because
amendment would be futile considering defendant’s admissions and the preclusive
effect of the CPLA as to plaintiff’s negligence claim. Colo. Rev. Stat. § 13-21-115;
Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859
(10th Cir. 1999) (“the district court may deny leave to amend where amendment would
be futile”).
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ORDERED that Plaintiff, Gulbin Van Alstine’s Unopposed Motion for Hearing on
Defendant Costco Wholesale Corporation’s Motion to Dismiss [Docket No. 23] is
DENIED as moot. It is further
ORDERED that Defendant’s Motion for Summary Judgment [Docket No. 28] is
DENIED as moot. It is further
ORDERED that, on or before October 15, 2024, plaintiff may file a motion to
amend the complaint.
DATED September 25, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge

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