Bickler v. Home Depot, U.S.A., Inc., No. 3:2010cv01029 - Document 27 (D. Or. 2011)

Court Description: 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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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF OREGON 5 PORTLAND DIVISION 6 7 8 9 10 11 12 MARILYN BICKLER, Personal ) Representative of the Estate ) OF MICHAEL BICKLER, Deceased, ) ) Plaintiff, ) ) vs. ) ) HOME DEPOT, U.S.A., INC., ) a Delaware corporation, ) ) Defendant. ) No. 03:10-cv-01029-HU MEMORANDUM OPINION & ORDER ON MOTION FOR SUMMARY JUDGMENT 13 ________________________________ 14 15 16 Robert D. Dames, Jr. Pacwest Center 1211 S.W. Fifth Avenue, Suite 1100 Portland, OR 97204 17 Attorney for Plaintiff 18 19 20 21 22 Joshua S. Baker Dennis G. Woods Scheer & Zehnder LLP 720 S.W. Washington, St., Suite 315 Portland, OR 97205 Attorneys for Defendant 23 24 25 26 27 28 1 - ORDER ON MOTION FOR SUMMARY JUDGMENT 1 2 HUBEL, Magistrate Judge: This matter is before the court on the defendant s motion for 3 summary judgment. 4 undisputed. 5 carpet at a Home Depot store in Hillsboro, Oregon. 6 employee was assisting him, answering questions and showing Bickler 7 some carpet samples. 8 any commercial-grade carpeting. 9 directed his attention to some carpet samples above Bickler s eye 10 level. Bickler took a step at about a 45-degree angle, and tripped 11 over one end of a 12-foot-long roll of carpet that was in the 12 aisle. 13 action against Home Depot to recover for his injuries, claiming 14 Home Depot was negligent in failing to warn business invitees of 15 the presence of the carpet over which he fell. 16 carpet in the aisle represented an unreasonable risk of harm to 17 Home Depot s business invitees, including himself, and Home Depot 18 negligently failed to protect him from that harm. 19 Amended Complaint. 20 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 21 Court. Home Depot removed the case to this court on the basis of 22 diversity jurisdiction. See Dkt. #1. It is well-settled that [a] 23 federal court sitting in diversity applies the substantive law of 24 the forum state, . . . as it believes the highest court of the 25 state would apply it. 26 F. Supp. 2d 1126, 1129-30 (D. Or. Jan. 5, 2004) (Panner, J.) 27 (emphasis, 28 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 1 L. Ed. 2d 659 (1996) ( Under the Erie doctrine, federal courts 2 sitting in diversity apply state substantive law and federal 3 procedural law. ). 4 law to the issues raised by the parties. Thus, the court will apply Oregon substantive 5 The parties arguments evidence their agreement that at the 6 time of the accident, Bickler was a business invitee of Home Depot. 7 See Cain v. Bovis Lend Lease, Inc., ___ F. Supp. 2d ___, 2011 WL 8 4072028, at *16-17 (D. or. Sept. 13, 2011) ( A business visitor is 9 a person who is invited to enter or remain on land for a purpose 10 directly or indirectly connected with business dealings with the 11 possessor of the land. ) (quoting Walsh v. C & K Market, Inc., 171 12 Or. App. 536, 539-40, 16 P.3d 1179, 1181-82 (2000), in turn quoting 13 Restatement (Second) of Torts § 332 (1974)). 14 Oregon law is clear regarding the duty of care owed by the 15 possessor of land to a business invitee. One in possession of 16 premises not only has the duty to warn [an invitee] of latent 17 dangers, but also has an affirmative duty to protect an invitee 18 against those dangers in the condition of the premises of which he 19 knows or should have known by the exercise of reasonable care. 20 Rich v. Tite-Knot Pine Mill, 245 Or. 185, 192, 421 P.2d 370, 374 21 (1966); accord Cain, supra, 2011 WL 4072028, at *17 (citing Rich). 22 This standard, however, does not require a store owner to warn its 23 customers of every possible risk of harm on the premises. 24 liability arises only for conditions that create an unreasonable 25 risk of harm to the invitee. 26 Inc., 244 Or. App. 675, 681, 260 P.3d 764, 767 (2011) (quoting 27 Glorioso v. Ness, 191 Or. App. 637, 643, 83 P.3d 914, 916-17 28 (2004); additional citation omitted). Rather, Hagler v Coastal Farm Holdings, 3 - ORDER ON MOTION FOR SUMMARY JUDGMENT Thus, to paraphrase the 1 Hagler court, the issue in the present case is whether, viewing the 2 record in the light most favorable to Bickler, see Fed. R. Civ. P. 3 56(c)(2); In re Oracle Corp. Securities Litigation, 627 F.3d 376, 4 387 (9th Cir. 2010); a reasonable trier of fact could find that the 5 12-foot roll of carpet in the aisle presented an unreasonable risk 6 of harm to Bickler. 7 767; Andrews v. R.W. Hays Co., 166 Or. App. 494, 503, 998 P.2d 774, 8 779 (2000) ( [P]roperty owners and occupiers of business premises 9 are liable to See Hagler, 244 Or. App. at 681, 260 P.3d at invitees only for conditions that create an 10 unreasonable risk of harm to the invitee. ) (quoting Jensen v. 11 Kacy s Markets, Inc., 91 Or. App. 285, 288, 754 P.2d 624, 625 12 (1988), in turn citing Woolston v. Wells, 297 Or. 548, 558, 687 13 P.2d 144, 150 (1984)). 14 A storekeeper owes to customers the duty to exercise ordinary 15 care to keep the aisles and passageways of his or her establishment 16 in a reasonably safe condition so as not to unnecessarily expose 17 customers to dangers from objects protruding into the aisles. 18 Gregory v. Kmart Corp., No. CV-05-1936-AA, 2007 WL 3408018, at *2 19 (D. Or. Nov. 15, 2007) (Aiken, J.) (citing Bryant v. Sherm s 20 Thunderbird Market, 268 Or. 591, 596, 522 P.2d 1383, 1386 (1974); 21 Miller v. Safeway Stores, Inc., 219 Or. 139, 153, 246 P.2d 647, 22 649-50 (1959)). 23 customer resulting from a danger which is open and obvious. 24 Gregory, 2007 WL 3408018, at *2 (citing 40 A.L.R. 5th 135). 25 hazard is open and obvious if the customer knew or should have 26 known of the hazard and appreciated the danger caused by it. A storekeeper is not liable for injury to a A Id. 27 However, when merchandising methods compel the attention of 28 the customer away from careful lookout to the floor, the proprietor 4 - ORDER ON MOTION FOR SUMMARY JUDGMENT 1 of the store owes a greater duty to protect the movement of the 2 customers feet. 3 153-54, 346 P.2d 647, 650 (1959) (citation omitted). 4 the present case indicate Bickler was in the carpet department for 5 five to ten minutes before he fell. 6 Jon Bickler dated April 20, 2011, p. 19. 7 his attention had been directed by a Home Depot employee to carpet 8 samples at or above his eye level, requiring him to look upward. 9 Drawing all justifiable inferences in Bickler s favor, I find it is 10 possible that a jury reasonably could render a verdict in his 11 favor. 12 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986) (inquiry on summary 13 judgment essentially is whether the evidence presents a sufficient 14 disagreement to require submission to a jury or whether it is so 15 one-sided that one party must prevail as a matter of law ). 16 17 18 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. 19 Dated this 7th day of December, 2011. 20 /s/ Dennis J. Hubel 21 _____________________________________ Dennis James Hubel Unites States Magistrate Judge 22 23 24 25 26 27 28 5 - ORDER ON MOTION FOR SUMMARY JUDGMENT

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