United States District Court, D. Colorado
WILLIAM L. CRUMB, Plaintiff,
KOHL'S DEPARTMENT STORES, INC., Defendant.
A. BRIMMER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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).
“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.
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)). 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).
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
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.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 ...