Newell et al v. Home Depot USA Inc

Filing 37

ORDER Denying 21 Defendant's Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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MICHAEL PATRICK NEWELL and CINDY
LOU NEWELL, individually and as a
marital community,

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Plaintiffs,

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ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

v.

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CASE NO. CV-13-5021-EFS

HOME DEPOT U.S.A. INC., a foreign
corporation,

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Defendant.
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While inspecting his employer’s paint products at the Richland

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Home

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bucket of paint fell on him.

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enter summary judgment in its favor on the Newells’ premises-liability

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negligence lawsuit.

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After reviewing the record and relevant legal authority, the Court is

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fully informed and denies Home Depot’s summary-judgment motion.

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//

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Depot,

ORDER - 1

Plaintiff

Michael

Newell

injured

his

shoulder

when

a

Defendant Home Depot asks the Court to

ECF No. 21.

The Newells oppose the motion.

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A.

Factual Statement1
Mr. Newell worked as a paint vendor for a company that sold

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products at the Home Depot in Richland, amongst other stores.

As a

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paint vendor, Mr. Newell ensured that his employer’s products were

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appropriately displayed at the Home Depot by pulling paint containers

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to the front of the paint bays, facing the paint containers to the

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aisle, and checking prices.

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crawled into paint bays on a daily basis.

To accomplish these tasks, Mr. Newell

Mr. Newell did not restock the paint product; rather Home Depot

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employees restocked products on the shelves almost daily.

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also did not have a supervisor at the Home Depot and rarely called

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upon Home Depot employees for assistance.

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with the store manager, Sal, nearly every time he went to the store.

Yet, Mr. Newell did speak

If paint2 spilled, it was the responsibility of the Home Depot

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Mr. Newell

paint department associates to clean the paint bays.

And the Home

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The parties submitted a Joint Statement of Uncontroverted Facts.
34.

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ECF No.

The Court treats these facts as established consistent with Federal

Rule of Civil Procedure 56(d), and sets these forth in this Factual
Statement

without

citation

to

the

record.

Any

disputed

quotations are supported by a citation to the record.

facts

or

When considering

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this motion and creating this factual section, the Court 1) believed the

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undisputed

facts

and

the

non-moving

party’s

evidence,

2)

drew

all

justifiable inferences therefrom in the non-moving party’s favor, 3) did
not weigh the evidence or assess credibility, and 4) did not accept

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assertions made by the non-moving party that were flatly contradicted by
the record.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986); Scott v. Harris, 550 U.S. 372, 380 (2007).

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ORDER - 2

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Depot had a spill procedure for handling hazardous materials like

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paint.

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of the store departments before each department opened.

Other store policies and procedures required daily inspections

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On February 1, 2014, Mr. Newell arrived at the Home Depot and

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began his usual task of organizing his employer’s products in the

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paint department.

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buckets so that the labels faced forward.

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near the back of the bay with the labels facing the other direction.

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Crouched near the back of the paint bay amongst five-gallon buckets,

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he grabbed the edge of a lid to a five-gallon bucket so that he could

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turn the bucket to see the label.

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42.

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five-gallon bucket which caused it to be stuck to the cement floor.

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Id.

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broke loose from the dried paint; the force of the bucket coming loose

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from the dried paint, caused the five-gallon bucket on top of that

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loosened bucket to fall down on Mr. Newell’s shoulder, injuring him.

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Id. at 42-43.

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cement floor, Mr. Newell called for Home Depot employee Whitney Hanson

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to assist him.

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assistance and moved buckets out of the way so that Mr. Newell could

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crawl out of the bay.

Mr. Newell climbed into a paint bay and moved paint
He observed paint buckets

Newell Dep., ECF No. 22, Ex. 2 at

Unbeknownst to Mr. Newell, there was dried paint underneath the

When Mr. Newell grabbed the side of the bucket’s lid, the bucket

In pain and now laying in a fetal position on the

Id. at 43.

In a few minutes, Ms. Hanson came to his

Id. at 43.

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The Court uses the generic term “paint” to refer to both paint and stain
products.

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ORDER - 3

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Ms. Hanson observed that there was dried paint under the entire

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diameter of the five-gallon bucket that Mr. Newell had attempted to

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move: there was no paint elsewhere on the ground.

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like anyone had tried to previously clean the paint on the concrete

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floor under the bucket.

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paint.

It did not look

Ms. Hanson then tried to scrape the dried

Dried spills are not something the Home Depot paint department

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normally

has

to

address.

However,

Mr.

Newell

testified

at

his

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deposition that he has seen, and was aware, that before February 1,

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2010, there was dried paint “all over the place in the paint bay.”

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Yet, he had never encountered a bucket of product stuck to the floor

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as a result of dried paint.

ECF No. 22, Ex. 2 at 32:9-11.

After the incident, Mr. Newell spoke to Sal, the store manager,

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about

the

incident

and

his

injury,

however,

Mr.

Newell

got

the

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impression that Sal was busy and not interested in hearing about what

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happened.

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A.

ECF No. 34, Ex. 2 at 48:24-25; 49:1-6; 62:7-10.

Standard

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Summary judgment is appropriate if the record establishes "no

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genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law.”

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opposing summary judgment must point to specific facts establishing a

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genuine dispute of material fact for trial.

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477 U.S. 317, 324 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio

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Corp., 475 U.S. 574, 586-87 (1986).

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make such a showing for any of the elements essential to its case for

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ORDER - 4

Fed. R. Civ. P. 56(a).

The party

Celotex Corp. v. Catrett,

If the non-moving party fails to

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which it bears the burden of proof, the trial court should grant the

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summary-judgment motion.

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B.

Analysis
To

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Celotex Corp., 477 U.S. at 322.

prevail

on

the

common-law,

premises-liability

negligence

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action, the Newells must establish that Home Depot owed a duty to Mr.

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Newell,

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injuries which were proximately caused by the breach of the duty.

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Hertog, ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275 (1999).

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Under the common law, the duty owed by a landowner to an entrant

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depends on whether the entrant was a trespasser, licensee, or invitee.

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Afoa v. Port of Seattle, 176 Wn.2d 460, 467 (2013).

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that, as an employee of a business selling product at Home Depot, Mr.

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Newell was an invitee to Home Depot’s premises.

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Court now at summary judgment is what duty, if any, Home Depot owed to

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Mr.

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whether there is a genuine dispute of material fact as to whether that

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duty was breached by Home Depot.

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duty Home Depot owed to Mr. Newell as an invitee is a question of law;

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while, the question of whether that duty was breached is a factual

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question, typically resolved by the finder of fact.

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1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220 (1991).

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Home

Newell

Depot

as

an

breached

invitee

that

under

duty,

these

and

Mr.

business

Newell

suffered
See

The parties agree

The issue before the

circumstances,

and

The initial determination of what

See Hutchins v.

Home Depot first argues that it does not owe Mr. Newell any

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invitee

duties

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premises in his capacity as an employee for a company selling its

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products

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applied in Kessler v. Swedish Hospital Medical Center, 58 Wn. App. 674

ORDER - 5

at

because

Home

Mr.

Depot,

Newell

relying

was

on

injured

the

on

the

Home

liability-insulation

Depot

rule

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(1990), and Tauscher v. Puget Sound Power and Light Co., 96 Wn.2d 274

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(1981).

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cases inapplicable here.

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was

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cleaning

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(Kessler) and climbing a telephone pole to connect wires near high

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voltage lines (Tauscher).

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settings, the courts ruled that a business landowner is not liable to

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the employee of an independent contractor for his injuries resulting

The Court finds the liability insulation applied in those

injured
the

while

In both Kessler and Tauscher the plaintiff

performing

exterior

work

windows

on

that
the

was

inherently

ninth

story

dangerous:

of

a

building

Under these inherently dangerous work

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from the dangerous work on the land.

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This liability insulation for the business landowner is consistent

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with the rule that the business landowner is also not liable for its

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own employee’s personal injuries during employment as such injuries

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are

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Newell’s work of checking on the condition of his employer’s stock at

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the Richland Home Depot was not inherently dangerous work, Home Depot

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is not insulated from liability to Mr. Newell under the Kessler and

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Tauscher line of inherently-dangerous-work cases.

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circumstances, Home Depot owed Mr. Newell the typical duty owed to

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invitees: the “duty to avoid endangering him by [Home Depot’s] own

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negligence.”

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(1978).

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covered

Finding

under

workers’

Kessler, 58 Wn. App. at 678-79.

compensation

laws.

Id.

Because

Mr.

Rather, under the

Lamborn v. Phillips Pac. Chem. Co., 89 Wn.2d 701, 707-08

that

Home

Depot

is

not

insulated

from

potential

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liability for Mr. Newell’s injuries that he suffered when he was an

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invitee at the Richland Home Depot, the Court proceeds to analyze

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whether summary judgment in Home Depot’s favor is appropriate on this

ORDER - 6

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premises-liability negligence claim.

Washington courts turn to the

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Restatement (Second) of Torts §§ 343 and 343A to set the duty owed by

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a possessor of land to an invitee.3

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Wn.2d 114, 125 (2002).

Kamla v. Space Needle Corp., 147

Section 343 states:

[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, [the possessor]
(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 the danger.

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Restatement (2d) Torts § 343.

Section 343A continues: “A possessor

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of land is not liable to his invitees for physical harm caused to them
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by any activity or condition on the land whose danger is known or
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obvious

to

them,

unless

the

possessor

should

anticipate

the

harm

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despite such knowledge or obviousness.”

Id. § 343A(1).

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Accordingly, the Court first focuses on whether there was a
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condition on the premises that involved an unreasonable risk of harm
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to the invitee.

Home Depot argues that dried paint does not pose an

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unreasonable risk of harm, highlighting that Mr. Newell testified at
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his deposition that dried paint is not dangerous.
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The Court applies Washington substantive law because this lawsuit is
based on diversity jurisdiction and the incident at issue occurred in
Washington. See Summers v. Interstate Tractor & Equip. Co., 466 F.2d 42,
47 (9th Cir. 1972).

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ORDER - 7

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At Mr. Newell’s deposition he answered the following questions
regarding dried paint:

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Q.

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A.
Q.
A.
Q.
A.

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So if you had occasion to see dried paint in the bay,
what would you do?
Report it to the store.
Why?
Because it’s their responsibility to clean it up.
Is that a danger to have dried paint there?
Maybe. I don’t know. I can’t think of how dangerous
it would be, but yeah. Yeah.
Or is it just an aesthetic concern?
It’s more – yes, I would agree with that.

Q.
A.

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ECF No. 22, 33:23-25 – 34:1-7.

Home Depot submits that Mr. Newell’s

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deposition answers, and the fact that he did not disclose the dried
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paint promptly to a Home Depot manager, support a finding as a matter
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of law that dried paint does not present an unreasonable risk of harm
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to an invitee.

The Court does not so find.

This line of questioning

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did not require Mr. Newell to opine regarding the specific risk at
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issue here: whether paint that is permitted to dry under buckets of
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paint at the Home Depot presents an unreasonable risk of harm to an
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invitee.

As to this issue, the Court finds a genuine dispute of

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material fact: a reasonable juror could determine that dried paint
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presents an unreasonable risk of harm (a danger) when it is permitted
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to dry and affixes a paint container to another object, such as the
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floor.

In analyzing this issue, the jury can consider the totality of

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the circumstances including Mr. Newell’s relaying of the condition and
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injury to Ms. Hanson and Sal.
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The jury should also consider whether Home Depot would have
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discovered the danger if it exercised reasonable care, whether Home
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Depot should expect that an invitee will not discover or realize the
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ORDER - 8

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danger or fail to protect themselves against it, and whether Home

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Depot

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danger.

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elements for a premises-liability negligence action brought by an

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invitee).

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evidence for the Court to make a finding as a matter of law in Home

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Depot’s favor.4

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(1975) (recognizing that a property owner must exercise reasonable

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care in protecting invitees from injury and that “[w]hat is reasonable

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depends upon the nature and the circumstances surrounding the business

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conducted”).

exercised

reasonable

care

to

protect

invitees

against

the

See Iwai v. State, 129 Wn.2d 84, 93–94 (1996) (setting forth

These are questions of fact for which there is insufficient

See Ciminski v. Finn Corp., 13 Wn. App. 815, 818-19

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Relying on Ciminski, the Newells suggest they need not prove the

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“notice” element, i.e., that Home Depot would have discovered the

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condition if it exercised reasonable care, because the “self-service

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operation” exception applies given that Home Depot’s paint department

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is a self-service paint center.

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649, 562 (1994) (recognizing that notice of the unsafe condition by

Cf. Ingersoll v. DeBartolo, 123 Wn.2d

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Home Depot asks the Court not to consider the expert report

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prepared by Joellen Gill, the Newells’ expert witness, ECF No. 24, Ex.

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3.

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so long as it is the type of information that an expert in the

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particular field would reasonably rely on, the Court has considered

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Ms. Gill’s expert report and her opinions contained therein.

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Evid. 703.

Because an expert witness may express an opinion based on hearsay,

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ORDER - 9

Fed. R.

1

the possessor is typically a required element for the invitee to

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prove).

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injured plaintiff need not prove that the self-service restaurant knew

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the food item that the plaintiff slipped on was dropped on the floor

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because the owner of a self-service operation has actual notice that

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customers may drop food at any time: thereby, creating a “self-service

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exception” to the notice element.

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for the self-service exception to the notice element was that a self-

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service operation accepts the risk that food items can be dangerously

In

the

floor

the

by

Washington

Court

of

Appeals

ruled

the

The Washington court’s rationale

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located

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operation

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condition presented by food items on the floor.

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pertinent

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plaintiff has shown that the circumstances were such as to create the

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reasonable probability that the dangerous condition would occur, he

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need not also prove actual or constructive notice of the specific

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condition.”

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360 (1964)).

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on

Ciminski,

effectively

part,

the

customers

has

and

therefore

constructive

Washington

Court

notice

of

the
of

Appeals

self-service

the

dangerous

Id. at 819.
stated,

In

“[W]hen

Id. at 822 (quoting Bozza v. Vonado, Inc., 42 N.J. 355,

Under the circumstances of this case, the Court declines to

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apply the self-service exception to the notice requirement.

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Depot’s

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product

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presented evidence that it is typical for a Home Depot customer to

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climb into a bay, bypassing the product closer to the aisle to remove

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the same product near the back of the bay.

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facts before the Court, it would not be typical for a Home Depot

self-service
near

ORDER - 10

the

operation

aisle

or

the

entails
front

of

customers
the

bay.

removing
Neither

Home
paint
party

Accordingly, under the

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customer to climb into the bay, bypass the product, and attempt to

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move a bucket of that same product that was stacked below another

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product.

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requirement.

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(“[T]he requirement of showing notice will be eliminated only if the

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particular self-service operation of the defendant is shown to be such

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that the existence of unsafe conditions is reasonably foreseeable.”).

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The Newells must prove the notice element, i.e., that Home Depot would

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have

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For these reasons, the Court declines to remove the notice
See Pimental v. Roundup Co., 100 Wn.2d 39, 50 (1983)

discovered

the

claimed

dangerous

condition

if

it

exercised

reasonable care.

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Yet, the Court finds as a matter of law that dried paint hidden

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under a paint container is not an open and obvious danger for a Home

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Depot

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products and the Richland Home Depot’s storage and care for paint

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products.

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seven-foot-tall store sign, Suriano v. Sears, Roebuck & Co., 117 Wn.

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App. 819, 829 (2003), or an open elevator shaft, Kamla, 147 Wn.2d at

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126.

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container

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Restatement

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liability; rather, the jury’s analysis will be guided by the elements

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set forth in Restatement § 343.5

invitee,

including

Mr.

Newell,

who

was

familiar

with

paint

Dried paint under a paint container is not similar to a

As the condition presented by the dried paint under the paint
was
§

not

open

and

343(A)(1)

obvious,

does

not

apply

the
to

standard
assessing

set

forth

Home

in

Depot’s

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In light of the language in Suriano v. Sears, Roebuck & Co., 117 Wn. App.
819, 831 (2003), that “it is ordinarily the better practice to give both
Section 343 and Section 343A(1) instructions,” the Court allows the

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ORDER - 11

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C.

Conclusion

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For the above given reasons, IT IS HEREBY ORDERED:

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Home Depot’s Motion for Summary Judgment, ECF No. 21, is DENIED.

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IT IS SO ORDERED.

Defendant

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

28th

day of August 2014.

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s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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parties the opportunity to propose a § 343A jury instruction, along with
legal argument explaining why such an instruction is appropriate when
the claimed dangerous condition was not open and obvious.

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Q:\EFS\Civil\2013\5021.msj.lc1.docx

ORDER - 12