Bickler v. Home Depot, U.S.A., Inc.
Filing
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MEMORANDUM OPINION AND ORDER: Defendants' Motion for Summary Judgment 19 is DENIED. Signed on 12/7/11 by Magistrate Judge Dennis J. Hubel. (kb)
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UNITED STATES DISTRICT COURT
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DISTRICT OF OREGON
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PORTLAND DIVISION
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MARILYN BICKLER, Personal
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Representative of the Estate )
OF MICHAEL BICKLER, Deceased, )
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Plaintiff,
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vs.
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HOME DEPOT, U.S.A., INC.,
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a Delaware corporation,
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Defendant.
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No. 03:10-cv-01029-HU
MEMORANDUM OPINION & ORDER
ON MOTION FOR SUMMARY JUDGMENT
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________________________________
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Robert D. Dames, Jr.
Pacwest Center
1211 S.W. Fifth Avenue, Suite 1100
Portland, OR 97204
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Attorney for Plaintiff
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Joshua S. Baker
Dennis G. Woods
Scheer & Zehnder LLP
720 S.W. Washington, St., Suite 315
Portland, OR 97205
Attorneys for Defendant
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1 - ORDER ON MOTION FOR SUMMARY JUDGMENT
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HUBEL, Magistrate Judge:
This matter is before the court on the defendant’s motion for
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summary judgment.
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undisputed.
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carpet at a Home Depot store in Hillsboro, Oregon.
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employee was assisting him, answering questions and showing Bickler
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some carpet samples.
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any commercial-grade carpeting.
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directed his attention to some carpet samples above Bickler’s eye
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level. Bickler took a step at about a 45-degree angle, and tripped
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over one end of a 12-foot-long roll of carpet that was in the
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aisle.
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action against Home Depot to recover for his injuries, claiming
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Home Depot was negligent in failing to warn business invitees of
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the presence of the carpet over which he fell.
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carpet in the aisle represented an unreasonable risk of harm to
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Home Depot’s business invitees, including himself, and Home Depot
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negligently failed to protect him from that harm.
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Amended Complaint.
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The facts of the case are straightforward and
On August 7, 2008, Michael Bickler was shopping for
A store
Bickler asked the employee if the store had
She indicated they did, and
He fell, injuring his shoulder and hip.
He brings this
He claims the
See Dkt. 17,
Bickler originally filed the case in Multnomah County Circuit
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Court.
Home Depot removed the case to this court on the basis of
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diversity jurisdiction. See Dkt. #1. It is well-settled that “[a]
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federal court sitting in diversity applies the substantive law of
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the forum state, . . . as it believes the highest court of the
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state would apply it.”
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F. Supp. 2d 1126, 1129-30 (D. Or. Jan. 5, 2004) (Panner, J.)
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(emphasis,
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Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 2219, 135
citations
Konecranes, Inc. v. Scott Sinclair, 340
omitted);
see
Gasperini
2 - ORDER ON MOTION FOR SUMMARY JUDGMENT
v.
Center
for
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L. Ed. 2d 659 (1996) (“Under the Erie doctrine, federal courts
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sitting in diversity apply state substantive law and federal
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procedural law.”).
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law to the issues raised by the parties.
Thus, the court will apply Oregon substantive
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The parties’ arguments evidence their agreement that at the
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time of the accident, Bickler was a business invitee of Home Depot.
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See Cain v. Bovis Lend Lease, Inc., ___ F. Supp. 2d ___, 2011 WL
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4072028, at *16-17 (D. or. Sept. 13, 2011) (“‘A business visitor is
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a person who is invited to enter or remain on land for a purpose
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directly or indirectly connected with business dealings with the
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possessor of the land.’”) (quoting Walsh v. C & K Market, Inc., 171
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Or. App. 536, 539-40, 16 P.3d 1179, 1181-82 (2000), in turn quoting
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Restatement (Second) of Torts § 332 (1974)).
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Oregon law is clear regarding the duty of care owed by the
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possessor of land to a business invitee.
One in possession of
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premises “not only has the duty to warn [an invitee] of latent
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dangers, but also has an affirmative duty to protect an invitee
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against those dangers in the condition of the premises of which he
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knows or should have known by the exercise of reasonable care.”
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Rich v. Tite-Knot Pine Mill, 245 Or. 185, 192, 421 P.2d 370, 374
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(1966); accord Cain, supra, 2011 WL 4072028, at *17 (citing Rich).
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This standard, however, does not require a store owner to warn its
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customers of every possible risk of harm on the premises.
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liability arises “‘only for conditions that create an unreasonable
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risk of harm to the invitee.’”
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Inc., 244 Or. App. 675, 681, 260 P.3d 764, 767 (2011) (quoting
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Glorioso v. Ness, 191 Or. App. 637, 643, 83 P.3d 914, 916-17
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(2004); additional citation omitted).
Rather,
Hagler v Coastal Farm Holdings,
3 - ORDER ON MOTION FOR SUMMARY JUDGMENT
Thus, to paraphrase the
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Hagler court, the issue in the present case is whether, viewing the
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record in the light most favorable to Bickler, see Fed. R. Civ. P.
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56(c)(2); In re Oracle Corp. Securities Litigation, 627 F.3d 376,
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387 (9th Cir. 2010); a reasonable trier of fact could find that the
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12-foot roll of carpet in the aisle presented an unreasonable risk
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of harm to Bickler.
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767; Andrews v. R.W. Hays Co., 166 Or. App. 494, 503, 998 P.2d 774,
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779 (2000) (“[P]roperty owners and occupiers of business premises
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are
‘liable
to
See Hagler, 244 Or. App. at 681, 260 P.3d at
invitees
only
for
conditions
that
create
an
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unreasonable risk of harm to the invitee.’”) (quoting Jensen v.
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Kacy’s Markets, Inc., 91 Or. App. 285, 288, 754 P.2d 624, 625
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(1988), in turn citing Woolston v. Wells, 297 Or. 548, 558, 687
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P.2d 144, 150 (1984)).
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“A storekeeper owes to customers the duty to exercise ordinary
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care to keep the aisles and passageways of his or her establishment
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in a reasonably safe condition so as not to unnecessarily expose
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customers to dangers from objects protruding into the aisles.”
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Gregory v. Kmart Corp., No. CV-05-1936-AA, 2007 WL 3408018, at *2
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(D. Or. Nov. 15, 2007) (Aiken, J.) (citing Bryant v. Sherm’s
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Thunderbird Market, 268 Or. 591, 596, 522 P.2d 1383, 1386 (1974);
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Miller v. Safeway Stores, Inc., 219 Or. 139, 153, 246 P.2d 647,
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649-50 (1959)).
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customer resulting from a danger which is open and obvious.”
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Gregory, 2007 WL 3408018, at *2 (citing 40 A.L.R. 5th 135).
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hazard is “open and obvious” if the customer knew or should have
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known of the hazard and appreciated the danger caused by it.
A storekeeper is not liable “for injury to a
A
Id.
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However, “when merchandising methods compel the attention of
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the customer away from careful lookout to the floor, the proprietor
4 - ORDER ON MOTION FOR SUMMARY JUDGMENT
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of the store owes a greater duty to protect the movement of the
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customers’ feet.”
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153-54, 346 P.2d 647, 650 (1959) (citation omitted).
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the present case indicate Bickler was in the carpet department for
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five to ten minutes before he fell.
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Jon Bickler dated April 20, 2011, p. 19.
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his attention had been directed by a Home Depot employee to carpet
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samples at or above his eye level, requiring him to look upward.
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Drawing all justifiable inferences in Bickler’s favor, I find it is
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possible that a jury reasonably could render a verdict in his
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favor.
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106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986) (inquiry on summary
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judgment essentially is “whether the evidence presents a sufficient
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disagreement to require submission to a jury or whether it is so
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one-sided that one party must prevail as a matter of law”).
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Miller v. Safeway Stores, Inc., 219 Or. 139,
The facts in
Dkt. #24-1, Depo. of Michael
At the time of the fall,
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
Accordingly, Home Depot’s motion for summary judgment is
denied.
IT IS SO ORDERED.
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Dated this 7th day of December, 2011.
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/s/ Dennis J. Hubel
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_____________________________________
Dennis James Hubel
Unites States Magistrate Judge
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5 - ORDER ON MOTION FOR SUMMARY JUDGMENT
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