Holson et al v. Kroger Company et al

Filing 29

ORDER denying Plaintiffs' 27 Motion for Reconsideration. Signed by Judge Marsha J. Pechman. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ETHAN HOLSON and MELISSA W.
ERDMAN,

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Plaintiffs,

CASE NO. C17-1439-MJP
ORDER DENYING MOTION FOR
RECONSIDERATION

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v.
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THE KROGER COMPANY and FRED
MEYER STORES, INC.,
Defendants.

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THIS MATTER comes before the Court on Plaintiffs’ Motion for Reconsideration (Dkt.

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No. 27) of the Court’s October 2, 2018 Order Granting Defendants’ Motion for Summary

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Judgment (Dkt. No. 25). Having reviewed the Motion and the related record, the Court DENIES

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the Motion.

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Motions for reconsideration are disfavored and ordinarily will not be granted “in the

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absence of a showing of manifest error in the prior ruling or a showing of new facts or legal

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authority which could not have been brought to its attention earlier with reasonable diligence.”

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ORDER DENYING MOTION FOR RECONSIDERATION - 1

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LCR 7(h)(1). Plaintiffs claim the Court (1) “overlooked or misapprehended” evidence including

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that there were cigarette butts in the landscaping along the fence line between the Fred Meyer

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and the Canal Boatyard, and that employees and tenants of Fred Meyer smoked there “all the

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time”; and (2) erred in failing to submit to the jury questions including whether Fred Meyer

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owed a duty to Plaintiffs. (Dkt. No. 27.) Contrary to Plaintiffs’ contention, the Court did not

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overlook or misapprehend the evidence set forth in the Motion for Reconsideration (e.g., that the

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employees and customers of Fred Meyer smoked along the property line or left cigarette butts in

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the landscaping, that Fred Meyer allowed debris to accumulate along the property line). Instead,

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the Court considered this evidence insufficient to give rise to a duty under Prince v. Chehalis

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Savings & Loan Ass’n, 186 Wn. 372 (1936) or Chicago, Milwaukee, St. Paul & Pacific R.R. Co.

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v. Poarch, 292 F.2d 449 (9th Cir. 1961). In those cases, the defendants “well knew” of the

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existence of a fire hazard, Prince, 186 Wn. at 376 (emphasis added), and “there was ample

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evidence from which a jury could find that appellant knowingly allowed [his property] to fall into

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a state of disrepair,” Poarch, 292 F.2d at 451 (emphasis added); see also Sourakli v. Kyriakos,

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Inc., 144 Wn. App. 501, 513 (2008) (explaining that in Prince, “the defendant knew of the

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hazardous condition on his property and allowed such a condition to exist even though the

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danger and fire hazard could have been removed with the exercise of ordinary and reasonable

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care.”). Here, Plaintiffs offered no evidence that Fred Meyer had actual or constructive

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knowledge of the alleged fire hazard. To the contrary, Vung Nguyen, Store Director of the

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Ballard Fred Meyer, explained that he had no knowledge that employees and customers of Fred

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Meyer smoked along the property line or left cigarette butts in the landscaping, or was otherwise

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aware that the store’s landscaping posed a fire hazard. (See Dkt. No. 13 at ¶ 3 (“The Ballard

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Fred Meyer did not allow their associates to smoke outside of the designated area [on the

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ORDER DENYING MOTION FOR RECONSIDERATION - 2

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opposite side of the store from where the fire started]. To my knowledge, Fred Meyer associates

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would not smoke in areas outside of the designated smoking area.”); ¶ 7 (“I have never heard of

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any landscaping fires at a Fred Meyer property in my twenty years with Fred Meyer and I never

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received any reports of landscaping fires at any Fred Meyer property.”).) On this record, no

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reasonable jury could find that Fred Meyer “knew” of the fire hazard such that it owed a duty to

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Plaintiffs.

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Because Plaintiffs have failed to show manifest error in the Court’s order or to raise any
evidence which compels a different outcome, its Motion for Reconsideration is DENIED.
The clerk is ordered to provide copies of this order to all counsel.
Dated November 29, 2018.

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A

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Marsha J. Pechman
United States District Judge

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ORDER DENYING MOTION FOR RECONSIDERATION - 3