Kockler et al v. Costco Wholesale Corporation
Filing
71
MEMORANDUM DECISION AND ORDER denying 49 Defendant's Motion for Summary Judgment. Signed by Judge Jill N. Parrish on 3/26/24. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MELINDA and GARY KOCKLER,
Plaintiffs,
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
v.
COSTCO WHOLESALE
CORPORATION, and DOES I-V,
Defendants.
Case No. 1:19-CV-00023-JNP
District Judge Jill N. Parrish
Magistrate Judge Jared C. Bennett
In 2014, Janice Alberts struck a pedestrian, Melinda Kockler, while driving outside of the
main entrance to the Costco store located at 3656 Wall Avenue in Ogden, Utah. ECF No. 2-2, ¶ 7.
The accident caused Ms. Kockler to suffer significant injuries and to incur economic losses in
excess of $250,000. Id. ¶ 10. Ms. Kockler and her former husband, Gary Kockler (“Plaintiffs”),
sued Costco Wholesale Corporation (“Costco”) and Does I-V (individuals or entities unknown to
Plaintiffs) (collectively, “Defendants”) in Utah state court, seeking to recover for Ms. Kockler’s
injuries, which were allegedly caused by the Defendants’ negligence in designing, constructing,
and maintaining Costco’s parking lot. Id. Costco promptly removed the action to this court. ECF
No. 2. Costco’s present motion seeks summary judgment on the bases that the Plaintiffs cannot
establish the breach and causation elements of their negligence claim. ECF No. 49, at 2.
SUMMARY JUDGMENT STANDARD
The court grants summary judgment when the movant proves both “that there is no genuine
dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). Costco bears the burden of supporting its assertion that there is no genuine dispute as to
any material fact with citations to “particular parts of materials in the record” and showing that the
Plaintiffs’ cited materials “do not establish the . . . presence of a genuine dispute[.]” Fed. R. Civ.
P. 56(c)(1).
“[S]ummary judgment will not lie if [a] dispute about a material fact is ‘genuine,’ that is,
if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Georgelas v. Desert Hill Ventures, Inc., 45 F.4th 1193, 1197 (10th Cir. 2022) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is “material” if it “might affect
the outcome of the suit under the governing law[.]” Anderson, 477 U.S. at 248. In short, summary
judgment should be denied if the parties’ dispute a material fact in a manner that presents a genuine
issue for trial. See id. at 248-49 (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968)).
ANALYSIS
Costco asserts that it is entitled to summary judgment for two reasons. First, Costco claims
that it did not breach its duty of care because its parking lot was designed and maintained in
compliance with local ordinances and state law. Second, Costco insists that the Plaintiffs cannot
meet their burden to prove the causation element of their negligence claim because the accident
was caused by the negligence or Ms. Alberts rather than that of Costco. The court does not find
Costco to be entitled to summary judgment on either basis. As a result, Costco’s motion is denied.
I.
BREACH
Costco claims that it is entitled to summary judgment because its compliance with local,
state, and Federal law in designing and maintaining its parking lot belies any finding that Costco
breached its duty of care with regard to the Plaintiffs’ injury. See ECF No. 49, at 16 (“There is no
provision in the South Ogden City code, or any other local, state, or Federal law that mandates the
use of bollards, obstacles, or barriers suggested by the Plaintiffs.”). Plaintiffs, however, insist that
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they have produced sufficient evidence from which a jury could find that Costco breached its duty
such that summary judgment must be denied. Based on the parties’ briefs and their related
evidence, the court agrees with Plaintiffs.
The parties agree that Costco owes a duty to keep its business “in a reasonably safe
condition for [its] patrons.” Jex v. JRA, Inc., 2008 UT 67, ¶ 25, 196 P.3d 576. The scope of that
duty, the parties further agree, is governed by the factors established in English v. Kienke, which
provides as follows:
A possessor of land is subject to liability for physical harm caused to his
invitees by a condition on the land if, but only if, he:
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against danger.
English v. Kienke, 848 P.2d 153, 156 (Utah 1993). Because the English test is conjunctive, Costco
would be entitled to summary judgment if it disproved any element of the test as a matter of law.
But the court finds that it has not done so and denies Costco’s motion to the extent that it challenges
Plaintiffs’ evidence establishing the breach element of its negligence claim.
A. COSTCO’S KNOWLEDGE OF AN UNREASONABLE RISK OF HARM
TO INVITEES
The first English factor requires a negligence plaintiff to establish that a defendant who is
a possessor of land “knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees[.]” English, 848 P.2d
at 156. Costco argues that its hiring of appropriate design professionals to create its parking lot
and the lack of evidence showing that “other big box Utah businesses . . . block off the front
roadway in front of their stores” disproves this element of Plaintiffs’ case as a matter of law.
No authority supports Costco’s claim that hiring appropriate design professionals alone
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satisfied its duty under the first English factor. Plaintiffs also cite authority establishing that a
defendant “is not allowed to eliminate its duty to discover dangerous conditions on its property
simply because it initially relied on others to build its business or parking lot.” ECF No. 53, at 23
(citing Price v. Smith's Food & Drug Centers, Inc., 2011 UT App 66, ¶ 26, 252 P.3d 365, 367).
Costco’s second argument, moreover, appears irrelevant to the matter at hand. Plaintiffs’ claim
against Costco does not turn on whether or not “other big box Utah businesses . . . block off the
front roadway in front of their stores” because that is not the action by Costco that Plaintiffs
contend caused the injury. Plaintiffs do not argue that Costco was negligent because it failed to
block off the roadway in front of its store, but because it allegedly failed to implement effective
safety elements in the design and maintenance of its parking lot, including by establishing
mechanisms to warn customers of potential dangers. ECF No. 2-2, ¶ 9. Thus, the court concludes
that Costco has not shown Plaintiffs’ negligence claim fails as a matter of law on the first element
of the English test.
B. COSTCO’S EXPECTATION REGARDING INVITEES’ DISCOVERY OR
REALIZATION OF THE DANGER
The second English factor requires a negligence plaintiff to establish that a defendant who
is a possessor of land “should expect that they will not discover or realize the danger, or will fail
to protect themselves against it[.]” English, 848 P.2d at 156. Costco has not met its burden as the
movant to show that Plaintiffs cannot establish this element. Instead, Costco’s motion confuses
the standard, discussing what Ms. Alberts could reasonably foresee despite the test’s focus on the
plaintiff’s expectation or realization of a possible danger. Costco also claims that “Plaintiff has
failed to prove how Costco should have expected that Plaintiff would be oblivious to this visible
and marked display and would trip over it.” ECF No. 49, at 18. But this case involves neither a
“visible and marked display” nor an accident in which the plaintiff was injured by tripping and
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falling over an obstacle. Costco’s motion thus fails to address the facts before the court and cannot
be said to have established that Plaintiffs’ claim fails on the English test’s second factor.
C. COSTCO’S FAILURE TO EXERCISE REASONABLE CARE TO
PROTECT INVITEES
The third English factor requires a negligence plaintiff to establish that a defendant who is
a possessor of land “fail[ed] to exercise reasonable care to protect them against danger.” English,
848 P.2d at 156. Costco argues that Plaintiffs cannot demonstrate this element of their negligence
claim because “Plaintiff is unable to identify anything on Costco’s part that went against Utah and
federal code and regulations.”1 ECF No. 49, at 18. Under Utah law, violation of a statute is
evidence of negligence per se. See Child v. Gonda, 972 P.2d 425, 432 (Utah 1998); see also
Thompson v. Ford Motor Co., 16 Utah 2d 30, 33, 395 P.2d 62 (“[V]iolation of a standard of safety
set by statute or ordinance is to be regarded as prima facie evidence of negligence[.]”). Costco’s
argument amounts to the claim that the inverse is true, such that compliance with local regulations
or state or Federal statutes is per se evidence of a lack of negligence. Costco failed to establish that
this legal proposition is established in Utah law—and it is not. See, e.g., Wardell v. Jerman, 18
Utah 2d 359, 362, 423 P.2d 485 (holding that “[o]ther factors must be considered” in determining
negligence notwithstanding evidence of a driver’s compliance with driving regulations).
Moreover, Costco’s proposed rule would make the parties’ expert reports irrelevant to the parties’
dispute. The court believes that, to the contrary, the expert reports and depositions produced in this
litigation are among the “other factors” that must be considered in determining Costco’s alleged
negligence. See, e.g., ECF Nos. 49-1, at 8; ECF No. 53, at 31-36; 49-11, at 3. The court thus
concludes that Costco failed to prove that Plaintiffs could not establish the third factor of the
Costco’s motion also argues that Costco could not foresee Plaintiffs’ injury in part due to Ms. Alberts’ contributory
negligence. ECF No. 49, at 18. The court does not address these facts in this section because it finds them relevant to
the causation element of Plaintiffs’ negligence claim rather than the breach element of that claim.
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English test for breach of a duty of care. As a result, the court denies Costco’s motion to the extent
that it argues Plaintiffs’ negligence claim fails with respect to the breach element of that claim.
II.
CAUSATION
Costco’s second argument in support of its summary judgment motion is that Costco did
not cause the injury underlying Plaintiffs’ negligence claim as a matter of law.
Summary judgment is not the appropriate stage at which to “resolve the conflict between .
. . competing theories of causation” because “that decision [i]s for the jury.” O'Donnell v. Elgin,
J. & E. R. Co., 338 U.S. 384, 386 (1949). Costco’s summary judgment motion must therefore be
denied because there exists a triable issue as to whether Costco’s alleged negligence was a
contributing but-for cause of the accident in which Ms. Kockler was injured. Causation is a
material issue in this case because it is an “essential element of the [negligence] claim.” Majors v.
Owens, 365 P.3d 165, 172 (Utah Ct. App. 2015) (citing Fox v. Brigham young Univ., 176 P.3d
446 (Utah Ct. App. 2007)). And there exists a genuine dispute as to whether Ms. Kockler would
have been injured but for Costco’s alleged negligence.
Costco argues that the Plaintiffs “cannot establish the causation element of their claim[,]”
because even if Costco had adopted additional safety measures in its parking lot, “none of these
measures would have prevented the accident[.]” ECF No. 49, at 19-20. Costco supports this factual
claim with expert testimony. See ECF Nos. 49-1, at 8 (“Litchfield Report”) (“[A] speed bump
would definitely not have stopped the vehicle, and it is not reasonable to assume it would have
stopped this accident from occurring with all of the other information and evidence provided.”);
54-1, at 368 (“Litchfield Dep.”) (“I don’t think it’s reasonable to say that if a speed bump was
there that it would have prevented the accident.”). Contradicting Costco’s factual contention, the
Plaintiffs cite their own expert testimony to show that Ms. Kockler would not have been injured
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but for Costco’s alleged negligence. See ECF No. 53, at 31-36 (citing ECF Nos. 49-3, at 3 (“Helm
Report”) (“The property owner . . . has absolute control over the safe operation of the parking area,
and could have availed themselves of the appropriate, industry accepted parking area configuration
and devices to prevent this type of tragic incident.”); 49-9, at 5 (“Rieter Report”) (“[S]torefront
crashes and pedestrian injury accidents in parking lots . . . are almost always preventable
incidents.”); 49-11, at 3 (“Brannon Rebuttal Report”) (“[A] speed bump . . . provid[es] a visual
and textual message to the driver that a slow speed over and beyond the bump is required. Such a
feature and message would likely have prevented this crash.”)).
This summary judgment motion presents what one district judge has termed “the
quintessential issue of fact for the jury”: “dueling theories of causation—each supported by expert
testimony[.]” Kukowski v. Soo Line R.R. Co., 2018 U.S. Dist. LEXIS 23533, at *43 (D. Minn. Feb.
12, 2018) (citing O’Donnell, 338 U.S. at 386). The court therefore denies Costco’s motion because
there exists a genuine dispute as to whether Ms. Kockler would have been injured but for Costco’s
alleged negligence.2
ORDER
Consistent with this Memorandum Decision and Order, Defendants’ Motion for Summary
Judgment (ECF No. 49) is DENIED.
Signed March 26, 2024
BY THE COURT
______________________________
Jill N. Parrish
United States District Court Judge
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While the court discusses only the parties’ factual dispute as to the cause of Ms. Kockler’s injuries, other triable
issues of fact emerge from the record as well. These include but may not be limited to the question of whether Ms.
Alberts’ negligence was a superseding cause of Ms. Kockler’s injuries, or merely an intervening cause that would
not break the chain of causation.
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