Ogilvie v. Thrifty PayLess Inc

Filing 66

ORDER denying Defendant's 49 Motion for Summary Judgment. Signed by Judge James L. Robart. (LH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARJORIE OGILVIE,

CASE NO. C18-0718JLR

Plaintiff,

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v.
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THRIFTY PAYLESS, INC., et al.
Defendants.

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ORDER DENYING DEFENDANT
THRIFTY PAYLESS, INC.’S
MOTION FOR SUMMARY
JUDGMENT

I.

INTRODUCTION

Before the court is Defendant Thrifty Payless, Inc.’s (“Rite Aid”) motion for

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summary judgment. (MSJ (Dkt. # 49).) Plaintiff Marjorie Ogilvie and Defendant Assa

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Abloy Entrance System US, Inc. (“Assa Abloy”) both oppose the motion. (Am. Ogilvie

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Resp. (Dkt. # 55); Assa Abloy Resp. (Dkt. # 56).) Rite Aid replied separately to each

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opposition. (Assa Abloy Reply (Dkt. # 59); Ogilvie Reply (Dkt. # 63).) The court has

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considered the motions, the parties’ submissions in support of and in opposition to the

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ORDER - 1

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motions, and the applicable law. Being fully advised,1 the court DENIES Rite Aid’s

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motion for summary judgment.

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II.

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BACKGROUND

The court begins by laying out the factual and procedural backgrounds of the case.
A.

Factual Background
On the morning of August 29, 2015, Ms. Ogilvie was approaching a Rite Aid in

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Arlington, Washington (“the Store”), when the sidelite2 of the Store’s automatic door

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flung open and struck her in the head. (Am. Ogilvie Resp., Ex. A (“Ogilvie Decl.”) ¶¶

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1-2.) Ms. Ogilvie fell backward, landing on the pavement, and sustained several injuries.

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(Id. ¶¶ 3-4.) The door in question was an automatic sliding door with a sidelite on each

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end. (Martin Decl. (Dkt. # 50) ¶ 3.) While the door does not normally open by swinging

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in or out, there is a breakaway mechanism that allows both the door and its sidelites to

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swing open in emergency circumstances. (Id. ¶ 4.)

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From August 1, 2013, to July 30, 2016, Rite Aid had a contract with Assa Abloy

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to perform general maintenance at the store and to respond to maintenance requests

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regarding the door. (10/2/20 Lancaster Decl. (Dkt. # 51) ¶ 3, Ex. 2; Assa Abloy Resp. at

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1-2.) Assa Abloy would conduct planned maintenance once a year after Rite Aid issued a

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work order for that maintenance. (Goldman Decl. (Dkt. # 57) ¶ 3, Ex. 2 (“Flock Dep.”)

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No party requests oral argument (see MSJ at 1; Ogilvie Resp. at 1; Assa Abloy Resp. at
1), and the court finds oral argument unnecessary to its disposition of the motion, see Local
Rules W.D. Wash. LCR 7(b)(4).
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Sidelites for automatic sliding doors are the glass panes on either side that the door
slides behind when it opens in its normal fashion. (See Goldman Decl. ¶ 11, Ex. 10.)

ORDER - 2

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23:21-24:21).) Rite Aid contends that Assa Abloy had inspected the door on August 1,

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2015, four weeks before the incident. (MSJ at 2; Martin Decl. ¶ 9.) Assa Abloy

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disagrees, and states that the last time it provided maintenance to the door was September

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18, 2014. (Assa Abloy Resp. at 3; see also Flock Dep. 25:1-26:4.) During the September

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18, 2014, maintenance visit, Assa Abloy discussed the door’s daily safety checklist with

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Rite Aid. (Goldman Decl. ¶ 2, Ex. 1 (“Myers Dep.”) at 20:15-21:2.) This daily safety

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checklist instructed Rite Aid to conduct a series of minimum safety checks on the door

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every day. (Id.; Goldman Decl. ¶ 6, Ex. 5 (“Daily Safety Checklist”) at 3.)

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The parties all agree that August 29, 2015, was a particularly windy day and that a

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gust of wind appears to have blown the sidelite into Ms. Ogilvie’s head. (See MSJ at 2,

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5; Am. Ogilvie Resp. at 1; Assa Abloy Resp. at 4.) Rite Aid contends that there is no

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evidence that any Store employees or representatives were on notice of the door swinging

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open unexpectedly on the day of the incident or any time prior. (MSJ at 2.) Assa Abloy,

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however, points to a Rite Aid work order submitted by Anita Tronson, the Store manager

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on duty at the time of the incident. (Goldman Decl. ¶ 9, Ex. 8 (“Work Order”).) This

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order is time-stamped at 11:07 a.m., 35 minutes before the incident,3 and states that the

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reporting employee “[s]aid that her front automatic doors pushed open from wind storm

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and will not stay shut now. [N]eeds emg service.” (Id.; Goldman Decl., Ex. 10

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(screenshots of video showing the incident occurring between 11:42 a.m. and 11:44

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a.m.).) Ms. Tronson, however, has testified that before the incident involving Ms.

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The parties do not dispute that the incident occurred between 11:42 a.m. and 11:44 a.m.

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Ogilvie, she neither observed the door blow open nor reported any issues with the door.

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(Tronson Decl. (Dkt. # 61) ¶¶ 8-9.4)

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B.

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Procedural Background
Ms. Ogilvie filed suit against Rite Aid in Snohomish County Superior Court on

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March 26, 2018. (Compl. (Dkt. # 1-1).) The case was removed to federal court on May

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17, 2018. (Not. of Removal (Dkt. # 1).) On August 13, 2018, Ms. Ogilvie amended her

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complaint to include Assa Abloy as a defendant. (Am. Compl. (Dkt. # 21).) Ms. Ogilvie

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alleges that “Defendant Assa Abloy Entrance Systems designed and/or manufactured

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and/or installed or had installed the sliding glass door that injured” her, and that these

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three things “were done in a negligent and/or improper and/or grossly negligent manner.”

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(Id. ¶¶ 6-7.) She further alleges that she suffered injuries and incurred medical expenses

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“due to Defendants’ negligence and premises liability” and that the Defendants are jointly

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and severally liable. (Id. ¶ 8.) Rite Aid moved for summary judgment on October 2,

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2020. (MSJ.)

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III.

ANALYSIS

The court lays out the appropriate legal standard before addressing Assa Abloy’s
motion to strike and the merits of Rite Aid’s motion for summary judgment.

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Assa Abloy has moved to strike Ms. Tronson’s declaration along with two others
because Rite Aid filed the declarations with its reply. (Mot. to Strike (Dkt. # 65).) As discussed
below, the court will consider this evidence. (See infra § III.B.)
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ORDER - 4

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A.

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Legal Standard
Summary judgment is appropriate if the evidence viewed in the light most

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favorable to the non-moving party shows “that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beaver v. Tarsadia Hotels,

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816 F.3d 1170, 1177 (9th Cir. 2016). A fact is “material” if it might affect the outcome

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of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute

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is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the

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non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001)

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(citing Anderson, 477 U.S. at 248-49).

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The moving party bears the initial burden of showing there is no genuine dispute

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of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at

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323. If the moving party does not bear the ultimate burden of persuasion at trial, it can

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show the absence of such a dispute in two ways: (1) by producing evidence negating an

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essential element of the nonmoving party’s case, or (2) by showing that the nonmoving

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party lacks evidence of an essential element of its claim or defense. Nissan Fire &

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Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party

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meets its burden of production, the burden then shifts to the nonmoving party to identify

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specific facts from which a factfinder could reasonably find in the nonmoving party’s

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favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

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//

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//

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B.

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Motion to Strike
Assa Abloy brings a motion to strike three declarations filed by Rite Aid with its

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reply. (Mot. to Strike; see also Sack Decl. (Dkt. # 60); Tronson Decl.; 12/3/20 Lancaster

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Decl. (Dkt. # 62).) In general, “[i]t is not acceptable legal practice to present new

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evidence or new argument in a reply brief.” Roth v. BASF Corp., C07-0106MJP, 2008

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WL 2148803, at *3 (W.D. Wash. May 21, 2008); see also United States v. Puerta, 982

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F.2d 1297, 1300 n.1 (9th Cir. 1992) (“New arguments may not be introduced in a reply

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brief.”); Bridgham-Morrison v. Nat’l Gen. Assembly Co., C15-0927RAJ, 2015 WL

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12712762, at *2 (W.D. Wash. Nov. 16, 2015) (“For obvious reasons, new arguments and

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evidence presented for the first time on Reply . . . are generally waived or ignored.”).

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Additional evidence can be presented in support of a reply brief, however, where “[t]he

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Reply Brief addressed the same set of facts supplied in [respondent’s] opposition to the

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motion but provides the full context to [respondent’s] recitation of the facts.” Terrell v.

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Contra Costa Cty., 232 F. App’x 626, 629 n.2 (9th Cir. 2007). In other words,

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“[e]vidence submitted in direct response to evidence raised in the opposition is not

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‘new.’” Crossfit, Inc. v. Nat’l Strength & Conditioning Ass’n, Case No. 14-CV-1191 JLS

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(KSC), 2017 WL 4700070, at *3 n.3 (S.D. Cal. Oct. 19, 2017). The Local Civil Rules

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expressly contemplate submitting additional evidence with a reply brief. See Local Rules

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W.D. Wash. LCR 7(b)(3) (“The moving party may . . . file . . . a reply brief in support of

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the motion, together with any supporting material of the type described in subsection

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(1).”).

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ORDER - 6

Rite Aid’s declarations all address its employees’ potential awareness of the

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danger posed by the door before Ms. Ogilvie arrived at the Store. (See generally Sack

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Decl.; Tronson Decl.; 12/3/20 Lancaster Decl.) The court finds that these declarations

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are submitted in direct response to the Work Order evidence raised in Assa Abloy’s

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opposition. (See Assa Abloy Resp. at 5 (arguing the Work Order demonstrates Rite Aid

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employees were on notice about the door opening unexpectedly by 11:07 a.m. at the

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latest).) Thus, Assa Abloy’s motion to strike is denied.

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C.

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A Genuine Dispute of Material Fact Exists
Rite Aid asks the court to grant its motion for summary judgment because Ms.

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Ogilvie alleges that the door was improperly designed, manufactured, or installed, and

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there is no evidence in the record that Rite Aid did any of these three actions. (MSJ at 3;

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Assa Abloy Reply (Dkt. # 59) at 1-2.) Ms. Ogilvie, however, brings her suit against Rite

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Aid based on a theory of negligence and premises liability. (See Am. Compl. ¶ 8

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(alleging Ms. Ogilvie suffered injuries “due to [Rite Aid and Assa Abloy’s] negligence

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and premises liability,” and that Defendants are jointly and severally liable).) Rite Aid

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lays out standards for both negligence and premises liability in its motion (MSJ at 4-5),

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and argues that if Ms. Ogilvie “is to succeed in her action against Rite Aid, she must

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prove that Rite Aid had actual or constructive knowledge that the front entrance doors

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posed an unreasonable risk of harm to its invitees.” (Ogilvie Reply at 3 (citing Iwai v.

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State, Employment Sec. Dep't, 915 P.2d 1089, 1093 (Wash. 1996)).

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The court agrees with Rite Aid that liability may exist if Ms. Ogilvie is able to
demonstrate that Rite Aid had notice of the potential danger posed by the door.

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Furthermore, the court finds that there is a genuine issue of material fact that goes

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directly to this potential liability. Assa Abloy has provided a document that, on its face,

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suggests that a Rite Aid employee knew the door was being blown open by the wind and

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requested emergency servicing 35 minutes before the incident with Ms. Ogilvie. (See

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Work Order (time stamped at 11:07 a.m. the morning of the incident).) Rite Aid has

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provided the court with evidence that contradicts this. (See Tronson Decl. (testifying that

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the employee listed on the Work Order did not submit any requests for emergency service

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before the incident).) Rite Aid also promises that “given additional time, Rite Aid will be

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able to obtain information relevant to the nature and mode of entry of the work order at

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issue to further substantiate the testimony of its employees.” (12/3/20 Lancaster Decl.

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¶ 4.)

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The court may not weigh competing evidence or decide if certain pieces of

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evidence require “further substantiat[ion]” on summary judgment. Viewed in the light

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most favorable to the non-moving parties, there exists a question of fact whether Rite Aid

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was aware of the door posing a possible danger before Ms. Ogilvie was struck and

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injured. This goes directly to Rite Aid’s potential negligence. (See MSJ at 4 (citing Iwai,

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915 P.2d at 1093).)

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Rite Aid also contends that the court should grant summary judgment on Assa

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Abloy’s affirmative defense of contribution because that defense relies on the existence

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of joint and several liability. (Assa Abloy Reply at 2.) Ms. Ogilvie explicitly alleges that

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the Defendants are jointly and severally liable. (Am. Compl. ¶ 8.) Rite Aid’s argument is

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dependent on the court finding that Ms. Ogilvie cannot sustain her negligence claim

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against it. (Assa Abloy Reply at 2 (“[U]nless Rite Aid is somehow responsible for the

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specifications of negligence alleged by Plaintiff, then Assa Abloy has no claim for

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contribution against it.”).) Because the court finds there is a genuine issue of material

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fact as to Ms. Ogilvie’s claim against Rite Aid, it also finds that awarding summary

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judgment against Assa Abloy’s affirmative defense of contribution is improper.

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Thus, because there is a genuine issue of material fact as to Rite Aid’s knowledge

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of the potential danger posed by the door, Rite Aid’s motion for summary judgment is

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denied in its entirety.

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IV.

CONCLUSION

For the foregoing reasons, the court DENIES Rite Aid’s motion for summary
judgment (Dkt. # 49).
Dated this 14th day of January, 2021.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 9