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Crumb v. Kohl's Department Stores, Inc.

United States District Court, D. Colorado

January 17, 2019

WILLIAM L. CRUMB, Plaintiff,



         This matter comes before the Court on Defendant Kohl's Department Stores, Inc.'s Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56(a) [Docket No. 38] and Plaintiff's Motion for Sanctions Due to Defendant's Spoliation of Evidence [Docket No. 63]. The Court has jurisdiction pursuant to 28 U.S.C. § 1332. I. BACKGROUND[1]

         This is a premises liability action. On February 23, 2017, plaintiff walked into a Kohl's store located at 16700 W. Colfax Ave. in Golden, Colorado. Docket No. 38 at 3, ¶ 1. There was a snow storm in the area that resulted in the closure of two major highways. Id. at 3, ¶ 4. Plaintiff was wearing men's dress shoes. Id. at 4, ¶ 9. After crossing the carpet at the entrance of the store, plaintiff stepped onto a tile floor where he slipped and fell. Id. at 3, ¶ 7. Plaintiff hit his head during the fall. Id. at 4, ¶ 8. Afterwards, he completed a Customer Incident Report indicating that he had fallen and hit his head. Id., ¶ 11. Plaintiff did not state in his report or otherwise inform any Kohl's employee that there was water on the tile where he fell. Id., ¶¶ 11-12.[2]

         Plaintiff's fall occurred at approximately 5:05 p.m. Id., ¶ 13. At that time, there were two managers in the store - Sydney Markle and Cassandra Nothdurft. Id., ¶¶ 14-16. While neither manager witnessed plaintiff's fall, Docket No. 46 at 6, ¶¶ 32-33, both testified that they inspected the area afterward, but did not see any water or other substance on the floor. Docket No. 38 at 5, ¶¶ 23-24. There is no evidence of any other falls occurring at the store on February 23, 2017. Id., ¶ 25.

         Defendant has protocols for the reporting of incidents and spills in its stores. Docket No. 46 at 5, ¶ 26. The protocols in effect in March 2017 directed employees to “[r]eview and document the condition of the [incident] area, along with any witnesses” and, specifically, to “[t]ake multiple photos of the area from different angles and obtain video (ideally 1 hour prior to the incident through 1 hour after the incident).” Id. at 7, ¶ 39; Docket No. 46-12 at 2. There were no photographs taken in connection with plaintiff's fall. Docket No. 46 at 7, ¶ 40. Additionally, there is no available video showing the fall or the location of the fall before or after it occurred. Id., ¶ 41.

         Plaintiff filed this lawsuit in the District Court for Jefferson County, Colorado on August 15, 2017. Docket No. 2. On October 4, 2017, defendant removed the case to this Court on the basis of diversity jurisdiction. Docket No. 1. In his complaint, plaintiff asserts a claim for premises liability under Colo. Rev. Stat. § 13-21-115. Docket No. 2 at 3.

         On July 13, 2018, defendant moved for summary judgment. Docket No. 38. Plaintiff filed a response to defendant's motion on August 20, 2018, Docket No. 46, to which defendant replied on September 4, 2018. Docket No. 47. On December 5, 2018, plaintiff moved for sanctions based on defendant's alleged spoliation of evidence. Docket No. 63.


         Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation marks omitted) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The nonmoving party may not rest solely on the allegations in the pleadings, but instead must designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id.

         III. ANALYSIS

         Plaintiff seeks to hold defendant liable under Colorado's Premises Liability Act, Colo. Rev. Stat. § 13-21-115(3)(c)(I), which “allows an invitee to recover for damages caused by a landowner's ‘unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.'” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 568 (Colo. 2008) (quoting Colo. Rev. Stat. § 13-21-115(3)(c)(I)).[3] To succeed on his premises liability claim, plaintiff must establish: “(1) the landowner actually knew or should have known of a danger on the premises and (2) [the landowner's] action or inaction constituted an unreasonable failure to exercise reasonable care to protect . . . plaintiff from that danger.” Id. (internal quotation marks omitted).

         Defendant argues it is entitled to summary judgment because plaintiff has not demonstrated that defendant knew or should have known of a dangerous condition in the store, or that defendant failed to exercise reasonable care with regard to such a condition. Docket No. 38 at 7-9. Plaintiff responds that defendant “had actual and constructive [knowledge] of a dangerous condition on the property, namely that excess water on a slick tile floor was a dangerous slipping hazard when not properly dry mopped.” Docket No. 46 at 9. Plaintiff further contends that there is a genuine dispute of fact as to whether defendant took reasonable measures to abate the risks associated with the slippery floor. Id. at 12-14.

         Viewing the evidence in a light most favorable to plaintiff, the Court finds that plaintiff has failed to establish the first element of his premises liability claim.[4]Specifically, there is no evidence showing that a dangerous condition existed in defendant's store at the time of plaintiff's fall. Defendant has presented testimony from two Kohl's managers - Sydney Markle and Cassandra Nothdurft - who were on duty at the time of the incident. Both stated that they did not see any water on the floor where plaintiff fell. Docket No. 38-2 at 5, 7, 27:3-28:9, 50:23-51:10; Docket No. 38-3 at 11, 71:21-72:7. While plaintiff cites to select portions of Ms. Markle's deposition to show that there was water on the floor prior to plaintiff's fall, see Docket No. 46 ...

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