Everett v. Bankers Life and Casualty Company, et al, No. 2:2013cv02246 - Document 26 (W.D. Wash. 2015)
Court Description: ORDER granting 18 Bankers Life's Motion for Summary Judgment; granting in part and denying in part 21 Bankers Life's Motion to strike and for sanctions. Bankers Life may bring a separate motion for attorneys' fees, by Judge James L. Robart.(MD)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ELEANOR L. EVERETT, CASE NO. C13-2246JLR Plaintiff, 11 ORDER GRANTING SUMMARY JUDGMENT v. 12 BANKERS LIFE AND CASUALTY CO., 13 14 Defendant. 15 I. INTRODUCTION 16 This matter comes before the court on the Defendant Bankers Life and Casualty 17 Co. (“Bankers Life”) motion for summary judgment. (See Mot. (Dkt. # 1).) This is a 18 slip-and-fall case: Plaintiff Eleanor L. Everett alleges that she injured her back in an 19 incident that occurred in Bankers Life’s supply room. Having considered the 20 submissions of the parties, the balance of the record, and the relevant law, and no party 21 // 22 ORDER- 1 1 having requested oral argument,1 the court GRANTS Bankers Life’s motion for summary 2 judgment. 3 4 II. BACKGROUND Ms. Everett alleges that, in August 2010, she injured her back in an accident at 5 work. The evidentiary record supporting this claim, however, is sparse. 6 Ms. Everett worked as an independent contractor for Bankers Life, selling 7 insurance. (Everett Decl. (Dkt # 19-2) Ex. C at 2; Everett Dep. (Dkt. # 18-6) at 56:2-11.) 8 In her deposition, Ms. Everett testified that on August 26, 2010, she entered the “resource 9 room” at Bankers Life’s officer to look for forms. (Everett Dep. at 39:14-40:21.) She 10 testified that the room was lined with cupboards, equipment, and boxes so that there was 11 “just barely room to walk through.” (Id.) She was, however, unable to describe or sketch 12 the layout of the room. (See id. at 47:22-52:1.) Pictures of the room as it exists today 13 show a lighted, door-less room located at the end of a hallway; one side of the room 14 contains a copy machine, the opposite side contains a counter with cabinets above and 15 below, and the back of the room contains bookshelves. (See Dkt. ## 18-8 through 1816 12.). Exhibit 1 shows two boxes on the floor against the back wall. (Dkt. # 18-8.) Ms. 17 Everett testified that at the time of her accident, the “whole area” in front of the cabinets 18 19 1 Oral argument is not necessary where the non-moving party would suffer no prejudice. Houston v. Bryan, 725 F.2d 516, 517-18 (9th Cir. 1984). “When a party has had an adequate opportunity 20 to provide the trial court with evidence and a memorandum of law, there is no prejudice in refusing to grant oral argument.” Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (quoting Lake at Las Vegas 21 Investors Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991) (internal punctuation omitted). “In other words, a district court can decide the issue without oral argument if the parties can the court.” Id. Here, the issues 22 submit their papers tonot be of assistance to the court. have been thoroughly briefed by the parties and oral argument would Accordingly, the court will not hold oral argument. ORDER- 2 1 shown in Exhibit 1“was full of boxes.” (See id. at 53:14-54:7, 56:9-15, Ex. 1.2) She did 2 not recall how many boxes there were; she did not recall how high the boxes were 3 stacked; she “guessed” that the boxes were the same size as the two boxes in Exhibit 1; 4 she “believed” that the boxes were filled with papers like the boxes in Exhibit 1; and she 5 “suspected” that they were “ordinary brown cardboard boxes.” (Id. at 54:8-55:6.) 6 With respect to the accident, Ms. Everett testified repeatedly that she tripped over 7 a box and fell: 8 9 10 11 12 Q: Okay. So, you’re in this resource room looking for forms. What happened? A: I’m not absolutely positive. I tripped over something. I couldn’t tell you now what it was, but I believe it was a box. Q: Okay. And what happened when you tripped? A: I don’t understand. Q: Well, did you fall to the ground? Did you catch yourself before you hit the ground? A: I fell over—all I remember is falling, I think, over a box. 13 Id. at 40:22-41:7; see also id. at 42:5-10 (Q: . . . So, you tripped over what may have been 14 a box; is that correct so far? A: Not entirely. Q: What have I misstated? A: You said 15 “may have.” I think I did trip over a box. There was nothing else to trip over.”); id. at 16 44:7-9 (“Q: Okay. So, to go over this again, you tripped over what may have been a box. 17 You’re sure you tripped? A: Yes.”).) She did not, however, recall whether she tripped 18 2 Bankers Life submits as evidence five photographs that were apparently exhibits to Ms. Everett’s deposition. (See Dkt. ## 18-8 through18-12.) Although the exhibits used at the deposition were numbered 4 through 8, Bankers Life submits the photographs labeled as Exhibits 1 through 5 to Ms. 20 Swanson’s declaration. (See Dkt. ## 18-8 through 18-12; Everett Dep. at 52:2-24.) By comparing the photographs with Ms. Everett’s descriptions in her deposition, it appears that when Ms. Everett 21 referenced Exhibit 5 to describe the location of the boxes, she was referring to the photograph that is currently labeled Exhibit 1 to Ms. Swanson’s declaration (Dkt. # 18-8). (See also Swanson Decl. (Dkt. # 18-7) ¶ 13.) 19 22 ORDER- 3 1 over the boxes that she previously testified were lined in front of the cabinets, or over 2 some other boxes. (Id.at 56:3-25.) 3 She does not recall why she tripped or what she was in the process of doing when 4 she tripped. (Id. at 47:1-18; 55:16-19 (“Q: Can you tell me in your own words what 5 caused you to trip, however you can explain it to me, if you recall. A: I don't recall.”).) 6 Her testimony was inconsistent as to whether she fell to the ground after she tripped. 7 (Compare id. at 41:8-15 (“Q: And then did you hit the ground? A: There was no ground. 8 Q: So, when you say you fell over this box, was the box in front of a cabinet or 9 something? A: Right, exactly. Q: So, when you fell, did you catch yourself on the 10 cabinet? A: No, I don’t know.”) and id. at 44:10-11 (Q: You did not fall to the ground? 11 A: I never fell to the ground.”) with id. at 46:17-21 (“Q: So, tell me what happened when 12 you tripped. A: I know that I fell. Q: You did fall? A. Well, I was on the floor, so I must 13 have fallen.”).) To the extent she maintained that she fell to the ground, she was unable 14 to recall how the fall had happened: 15 16 Q: Okay. All right. And I’m still having trouble visualizing how you end up on the floor by tripping over boxes that are up against a cabinet. A: Geez, it’s been a long time. I don’t recall. 17 (Id. at 57:1-4; see also at 57:20-58:2.) 18 The only admissible evidence that Ms. Everett has provided is her own declaration 19 and two hospital intake records. With respect to the cause of the accident, Ms. Everett’s 20 declaration states in full: 21 22 We had a resource room at Banker’ life [sic] that was very small and there were cupboards and boxes throughout the room along with copying equipment and you had to lean over these items in order to get supplies. As ORDER- 4 1 I was reaching over the boxes to get some supplies some of the boxes fell on me and knocked me to the floor. I do not recall if I was unconscious or not, all I remember was being picked off the floor by people who heard me fall. I started to have immediate pain in my back throughout down [sic] the left side of my body. Other people at Banker’s [sic] Life complained about the resource room because it was unsafe and very difficult to retrieve supplies out of the room. 2 3 4 5 (Everett Decl. Ex. A.) 3 6 With respect to the intake records, the hospital that Ms. Everett visited three days 7 after the accident filled out a Report of Industrial Injury or Occupational Disease. 8 (Everett Decl. Ex. B at 1.) This report describes the occurrence of the injury as follows: 9 “In resource room, boxes were stacked around room, fell over boxes.” Id. The Patient 10 Admit Fact Sheet, filled out by the hospital and Ms. Everett that same day, describes the 11 accident cause as “fell down moving boxes.” (Id. at 2.) The Fact Sheet also states that 12 the incident occurred at “home.” (Id. at 2, 3.). 13 Ms. Everett claims that, as a result of her accident, she has experienced continual 14 back pain, incurred medical bills in excess of $100,000.00, and undergone back surgery 15 and physical therapy. (Interrog. Resp. (Dkt. # 18-3); Everett Dep. at 38:1-8.) But she has 16 // 17 18 19 20 21 22 3 Ms. Swanson, Bankers Life’s Office Administrator, testifies that the resource room has not changed in lighting or arrangement since August 2010; that the lighting consists of fluorescent fixtures; that unpacked boxes are placed at the back wall as shown in Exhibit 1; that empty boxes are immediately discarded; that she does not recall any occasion where boxes were stacked in front of the cabinets; that she does not recall any occasion where boxes were stacked high enough to fall on someone; and that no one, including Ms. Everett, has complained to her that the room was “unsafe.” (See Swanson Decl. ¶¶ 615.) For the purposes of summary judgment, however, the court must view all of the evidence in the light most favorable to Ms. Everett, and must not make credibility determinations. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). According, the court credits Ms. Everett’s testimony above. ORDER- 5 1 not set forth any affirmative evidence regarding a medical diagnosis or treatment, or 2 otherwise substantiating her damages claim. (See generally Dkt.) 3 Nonetheless, Ms. Everett brings a claim for negligence against Bankers Life. (See 4 Compl. (Dkt. # 1-1).) Bankers Life has moved for summary judgment. (See Mot.) That 5 motion is now before the court. 6 III. ANALYSIS 7 A. Summary Judgment Standard 8 Federal Rule of Civil Procedure 56 permits a court to grant summary judgment 9 where the moving party demonstrates (1) the absence of a genuine issue of material fact 10 and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 11 317, 322 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The 12 moving party bears the initial burden of showing the absence of a genuine issue of 13 material fact. Celotex, 477 U.S. at 323. If the moving party does not bear the ultimate 14 burden of persuasion at trial, it can show the absence of an issue of material fact in two 15 ways: (1) by producing evidence negating an essential element of the nonmoving party’s 16 case, or, (2) by showing that the nonmoving party lacks evidence of an essential element 17 of its claim or defense. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 18 (9th Cir. 2000). 19 If the moving party meets its burden of production, the burden then shifts to the 20 nonmoving party to identify specific facts from which a factfinder could reasonably find 21 in the nonmoving party’s favor. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, 22 Inc., 477 U.S. 242, 252 (1986). In determining whether the factfinder could reasonably ORDER- 6 1 find in the nonmoving party’s favor, “the court must draw all reasonable inferences in 2 favor of the nonmoving party, and it may not make credibility determinations or weigh 3 the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). 4 However, a jury “is permitted to draw only those inferences of which the evidence is 5 reasonably susceptible; it may not resort to speculation.” British Airways Bd. v. Boeing 6 Co., 585 F.2d 946, 952 (9th Cir. 1978). Moreover, a “non-movant’s bald assertions or a 7 mere scintilla of evidence in his favor are both insufficient to withstand summary 8 judgment.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). If the nonmoving 9 party fails to produce enough evidence to create a genuine issue of material fact, 10 summary judgment for the moving party is proper. Nissan Fire, 210 F.3d at 1106. 11 B. Motion to Strike and for Sanctions 12 As a preliminary matter, the court addresses Bankers Life’s motion to strike and 13 for sanctions. (Mot. to Strike (Dkt. # 21).) Ms. Everett originally filed two additional 14 declarations from third parties in support of her opposition to the motion for summary 15 judgment. (See Dkt. ## 19-1, 19-3.) Bankers Life moves to strike these declarations 16 pursuant to Federal Rule of Civil Procedure 37(c) because Ms. Everett did not identify 17 the witnesses in her initial disclosures. (See Mot. to Strike at 1-4; Simmons Decl. (Dkt. 18 # 21-1) ¶ 6.) Ms. Everett has now withdrawn these declarations. (Everett Resp. to Mot. 19 to Strike (Dkt. # 23).) As such, Bankers Life’s motion to strike is moot. 20 Bankers Life also moves for case-dispositive sanctions, claiming that the 21 declaration filed under Chuck Taylor’s name on December 15, 2014, is fraudulent. (Mot. 22 to Strike at 5-6; see also (False Taylor Decl. (Dkt. # 19-1).) A district court “has the ORDER- 7 1 inherent authority to impose sanctions for bad faith, which includes a broad range of 2 willful improper conduct.” Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001); see also 3 B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1107-08 (9th Cir. 2002), as amended (Feb. 4 20, 2002); Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980). Upon a finding of bad 5 faith, courts can levy an assortment of sanctions under their inherent power, including 6 monetary awards, attorneys’ fees, adverse inference jury instructions, and even dismissal 7 of claims. Apple, Inc. v. Samsung Elecs. Co., Ltd., 881 F. Supp. 2d 1132, 1135 (N.D. 8 Cal. 2012) (collecting cases); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). 9 Sanctions should be commensurate to the sanctioned party’s degree of fault and the other 10 party’s prejudice. See Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. CIV. 1011 0541-GPC WVG, 2013 WL 6159177, at *7 (S.D. Cal. Nov. 25, 2013). “A trial court’s 12 inherent powers unquestionably include the power to assess attorney’s fees against any 13 counsel who willfully abuses judicial process or otherwise conducts litigation in bad 14 faith.” Barnd v. City of Tacoma, 664 F.2d 1339, 1342 (9th Cir. 1982). 15 The false declaration is electronically signed “/s/ Chuck Taylor” and purports to be 16 signed “under penalty of perjury of the laws of the State of Washington.” (False Taylor 17 Decl. at 2.) Mr. Taylor, however, has provided an authentic declaration stating that he 18 “did not authorize the Declaration that was filed in this case under my name on 19 December 15, 2014 as Document 19-1.” (Taylor Decl. (Dkt. # 22-1) ¶ 3.) He testifies 20 that he “did not see the Declaration at any time until counsel for Bakers Life sent it to 21 [him] as an e-mail attachment.” (Id. ¶ 4.) He also states that when Ms. Everett 22 telephoned and asked him to be a witness for this case, he told her that he “did not want ORDER- 8 1 to sign anything for this lawsuit.” (Id. ¶ 8 (emphasis in original).) Nonetheless, on 2 December 15, 2014, Ms. Everett left him a voice message “advising that she was going to 3 file something anyway.” (Id. ¶ 9.) Mr. Taylor’s authentic declaration is signed with his 4 handwritten, cursive signature. (Id. at 3.) 5 For her part, Ms. Everett contends that Mr. Taylor gave her a handwritten 6 statement, which she faxed to her attorney to be typed up and filed. (2d Everett Decl. 7 (Dkt. 24); Stmt. (Dkt. # 24-1); see generally Resp. to Mot. to Strike (Dkt. # 23).) Ms. 8 Everett claims that she was justified in filing the declaration in Mr. Taylor’s name 9 because he did not tell her that he did not want the statement to be used, so she “simply 10 used the statements . . . provided to [her].” (Id.) The court notes that the signature on the 11 handwritten statement supposedly provided by Mr. Taylor is in print, rather than cursive, 12 and does not match the signature on Mr. Taylor’s authentic declaration. (Compare Stmt. 13 with Taylor Decl.) The docket shows that Ms. Everett’s attorney typed up the statement, 14 electronically signed Mr. Taylor’s name, and filed the statement at docket number 19-1. 15 (See also Resp. to Mot. to Strike.) The attorney, however, procured neither permission 16 from Mr. Taylor to sign Mr. Taylor’s name nor confirmation from Mr. Taylor that the 17 information in the declaration was true and correct. (See id.; Taylor Decl. ¶¶ 3-4.) In 18 fact, Mr. Taylor testifies that some of the information is incorrect. (See Taylor Decl. ¶ 7.) 19 Even accepting Ms. Everett’s version of events as true, the purported declaration is 20 fraudulent: it purports to be signed by Mr. Taylor under penalty of perjury when Mr. 21 Taylor did not, in fact, sign the declaration, and does not, in fact, “declare or affirm that 22 the [contents of the declaration are] true and correct.” (See False Taylor Decl.) Signing ORDER- 9 1 someone else’s name to a court filing without their permission is willful, deceitful 2 conduct. So, too, is attempting to mislead the court by falsely representing that a witness 3 has attested to certain facts under oath. Therefore, the court finds that Ms. Everett’s 4 counsel’s actions constitute bad faith or conduct tantamount to bad faith. See Barnd, 664 5 F.2d at 1342; Fink, 239 F.3d at 992. Although the prejudice to Bankers Life is largely 6 alleviated now that the declaration has been withdrawn, the court finds that Bankers Life 7 is at least entitled to the attorneys’ fees associated with its motion to strike the fraudulent 8 declaration. See Barnd, 664 F.2d at 1342. Bankers Life shall file a separate motion 9 detailing its requested fees for the court’s consideration. 10 C. Sham Affidavit 11 The court turns next to the subject of Ms. Everett’s declaration. “The general rule 12 in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit 13 contradicting his prior deposition testimony.” Van Asdale v. Int’l Game Tech., 577 F.3d 14 989, 998 (9th Cir. 2009). “This sham affidavit rule prevents a party who has been 15 examined at length on deposition from raising an issue of fact simply by submitting an 16 affidavit contradicting his own prior testimony, which would greatly diminish the utility 17 of summary judgment as a procedure for screening out sham issues of fact.” Yeager v. 18 Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (internal punctuation omitted) (quoting 19 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). The sham affidavit 20 rule, however, “should be applied with caution.” Van Asdale, 577 F.3d at 998. To apply 21 the rule, the court must first “make a factual determination that the contradiction was 22 actually a ‘sham.’” Id. Second, “the inconsistency between a party’s deposition ORDER- 10 1 testimony and subsequent affidavit must be clear and unambiguous to justify striking the 2 affidavit.” Id. at 998-999. Therefore, the “non-moving party is not precluded from 3 elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on 4 deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or 5 newly discovered evidence afford no basis for excluding an opposition affidavit.” Id. 6 (internal punctuation omitted) (quoting Messick v. Horizon Indus., 62 F.3d 1227, 1231 7 (9th Cir. 1995)). 8 The court finds that the portion of Ms. Everett’s declaration describing her 9 accident is a sham. (See Everett Decl. Ex. A.) Regarding the accident, Ms. Everett’s 10 declaration states in full: “As I was reaching over the boxes to get some supplies some of 11 the boxes fell on me and knocked me to the floor.” (See id.) This statement is not a 12 minor inconsistency or clarifying testimony. Rather, Ms. Everett’s assertion that she was 13 knocked over by falling boxes contradicts her previous deposition testimony that she fell 14 because she tripped over a box on the floor. (See Everett Dep. at 44:7-9 (“Q: Okay. So, 15 to go over this again, you tripped over what may have been a box. You’re sure you 16 tripped? A: Yes.”).) The distinction between the two is clear and unambiguous. Van 17 Asdale, 577 F.3d at 998. Ms. Everett, however, offers no explanation as to why she has 18 changed her story. (See Resp.; Everett Decl.) There is no suggestion that Ms. Everett’s 19 new testimony is based on newly discovered evidence or that her prior deposition 20 testimony was an “honest discrepancy” or mistake. See Van Asdale, 577 F.3d at 998. 21 This conclusion is especially apt given that Ms. Everett repeatedly insisted during her 22 deposition that she had tripped over a box on the floor, and never once mentioned boxes ORDER- 11 1 falling onto her and knocking her to the floor. (See Everett Dep. 40:22-41:7; 42:5-10; 2 44:7-9.) Additionally, the hospital intake records describe the cause of accident to be 3 tripping over a box. (See Everett Decl. Ex. B at 1-3.) But no evidence in the record 4 supports Ms. Everett’s new version of the story. Therefore, the court strikes the portion 5 of Ms. Everett’s declaration regarding the cause of her accident as a sham, and will not 6 consider it in rendering its decision on Banker Life’s motion for summary judgment. See 7 Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (affirming finding that a 8 declaration was a sham because “the deponent remember[ed] almost nothing about the 9 events central to the case during his deposition, but suddenly recall[ed] those same events 10 with perfect clarity in his declaration in opposition to summary judgment without any 11 credible explanation as to how his recollection was refreshed”); see also Ah Quin v. Cnty. 12 of Kauai Dep’t of Transp., 733 F.3d 267, 289 (9th Cir. 2013) (“[Plaintiff] cannot create a 13 genuine issue of material fact and thus avoid summary judgment simply by swearing to 14 facts that are contradicted by the record.”). 15 D. Washington Premises Liability 16 Finally, the court reaches the merits of the motion. A cause of action for 17 negligence requires the plaintiff to establish “(1) the existence of a duty owed, (2) breach 18 of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the 19 injury.” Pedroza v. Bryant, 677 P.2d 166, 168 (Wash. 1984). According to premises 20 liability theory, a landowner owes an individual a duty of care based on the individual’s 21 status (invitee, licensee, or trespasser) upon the land. Curtis v. Lein, 239 P.3d 1078, 1081 22 (Wash. 2010). Employees of independent contractors hired by landowners are invitees ORDER- 12 1 on the landowners’ premises. Kamla v. Space Needle Corp., 52 P.3d 472, 477 (Wash. 2 2002). 3 Washington has adopted sections 343 and 343A of the Restatement (Second) of 4 Torts to define a landowner’s duty to invitees. Kamla, 52 P.3d at 477. The Restatement 5 provides that a possessor of land is subject to liability for physical harm caused to his 6 invitees by a condition on the land only if the possessor “(a) knows or by the exercise of 7 reasonable care would discover the condition, and should realize that it involves an 8 unreasonable risk of harm to such invitees, and (b) should expect that they will not 9 discover or realize the danger, or will fail to protect themselves against it, and (c) fails to 10 exercise reasonable care to protect them against the danger.” Id. (quoting Restatement 11 (Second) of Torts § 343). Additionally, “a possessor of land is not liable to his or her 12 invitees for physical harm caused to them by any activity or condition on the land whose 13 danger is known or obvious to them, unless the possessor should anticipate the harm 14 despite such knowledge or obviousness.” Id. (quoting Restatement (Second) of Torts § 15 343A (emphasis and brackets omitted)). 16 E. Ms. Everett’s Claim 17 Ms. Everett’s claim for negligence fails because, on the record before the court, a 18 reasonable fact-finder could not find that the state of Bankers Life’s resource room 19 involved an “unreasonable risk of harm.” See id. Viewed in the light most favorable to 20 Ms. Everett, the available evidence shows only that the room was crowded with furniture 21 and equipment, and an unknown number of boxes occupied the floor space in front of the 22 cabinets. (See Everett Decl. Ex. A; Everett Dep. 39:14-40:21; 53:14-54:7, 56:9-15; Dkt. ORDER- 13 1 # 18-8.) This, without more, is insufficient to show an unreasonable risk of harm. In 2 Charlton v. Toys R Us, the Washington Court of Appeals affirmed a summary judgment 3 finding of no negligence because although the plaintiff had shown that the entryway floor 4 was wet, she “failed to present any evidence that the floor in the entryway of the Toys R 5 Us store presented an unreasonable risk of harm when wet.” Charlton v. Toys R Us— 6 Delaware, Inc., 246 P.3d 199, 203 (2010) (“For that reason alone, summary judgment 7 was proper.”) The court found that the trial court properly “rejected [the plaintiff’s] 8 position that that a wet floor is always a dangerous condition, and that she was therefore 9 excused from presenting evidence of an unreasonable risk created by this particular wet 10 floor.” Id. 11 Similarly, here, it is possible that, in certain configurations, a room crowded with 12 boxes could present a dangerous condition with an unreasonable risk of harm. But it is 13 pure speculation as to whether such configuration existed in Bankers Life’s supply room. 14 See British Airways Bd., 585 F.2d at 952. Ms. Everett has put forth no evidence of the 15 unreasonable risk created by these particular boxes. In fact, she does not even remember 16 how high the boxes were stacked, whether the room was lighted, or how she tripped. 17 (Everett Dep. 42:11-43:3, 47:1-18, 54:8-55:6, 55:16-19, 56:3-25, 57:1-4 “(Q. . . . And 18 I’m still having trouble visualizing how you end up on the floor by tripping over boxes 19 that are up against a cabinet. A. Geez, it’s been a long time. I don’t recall.”); see also 20 Little v. Countrywood Homes, Inc., 133 P.3d 944, 947 (Wash. Ct. App. 2006) (finding no 21 probable cause because the plaintiff did not remember how his jobsite accident occurred). 22 ORDER- 14 1 The position that boxes in crowded rooms are always a dangerous condition, however, is 2 impermissible. See Charlton, 246 P.3d at 203. 3 Ms. Everett’s declaration stating that “other people at Banker’s [sic] Life 4 complained about the resource room because it was unsafe” does not rescue her claim. 5 (See Everett Decl. Ex. A.) “When the nonmoving party relies only on its own affidavits 6 to oppose summary judgment, it cannot rely on conclusory allegations unsupported by 7 factual data to create an issue of material fact.” Hansen v. United States, 7 F.3d 137, 138 8 (9th Cir. 1993); see also F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th 9 Cir. 1997), as amended (Apr. 11, 1997) (“A conclusory, self-serving affidavit, lacking 10 detailed facts and any supporting evidence, is insufficient to create a genuine issue of 11 material fact.”). Ms. Everett presents no evidence, other than her bald assertion, that the 12 room was “unsafe.” But “a non-movant’s bald assertions or a mere scintilla of evidence 13 in his favor are both insufficient to withstand summary judgment.”4 Stefanchik, 559 F.3d 14 at 929. Because Ms. Everett raises no more than a scintilla of evidence supporting the 15 essential element of “unreasonable risk,” summary judgment is appropriate. See Nissan 16 Fire, 210 F.3d at 1106. 17 18 IV. CONCLUSION For the foregoing reasons, the court GRANTS Bankers Life’s motion for summary 19 judgment (Dkt # 18). The court GRANTS in part and DENIES in part Bankers Life’s 20 4 In addition, Ms. Everett’s statement that other people had complained that the supply room was unsafe is hearsay. See Fed. R. Evid. 801. This statement would be inadmissible at trial to prove the truth 21 of the matter asserted. See Fed. R. Evid. 802. As such, it is not an appropriate basis for opposing a 22 summary judgment motion. See Fed. R. Civ. P. 56(c)(2). For this reason also, summary judgment is appropriate. ORDER- 15 1 motion to strike and for sanctions (Dkt. # 21). Bankers Life may bring a separate motion 2 for attorneys’ fees as described above. 3 Dated this 9th day of January, 2015. 4 6 A 7 JAMES L. ROBART United States District Judge 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 16
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