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Watts v. Home Depot U.S.A. Inc.

United States District Court, D. Colorado

March 7, 2019

LINDA WATTS, Plaintiff,



         This case stems from an injury Plaintiff Linda Watts (“Watts”) sustained in the parking lot of Defendant Home Depot U.S.A., Inc.'s (“Home Depot”) Store #1538 located at 5660 E. Woodmen Road, Colorado Springs (the “Store”). Watts brings a statutory premises liability claim against Home Depot pursuant to the Colorado Premises Liability Act (“CPLA”), Colo. Rev. Stat. § 13-21-115.[1]

         Before the Court is Home Depot's Motion for Summary Judgment (“the Motion”). (ECF No. 59.) For the reasons discussed below, the Court denies the Motion.

         I. BACKGROUND

         The basic facts are relatively straightforward and undisputed. Citations to docketed materials are to the page number in the CM/ECF header rather than to any internal pagination.

         On November 14, 2015, Watts drove to the Store and parked in the Store parking lot, “adjacent to a concrete walkway extending from the . . . Store Entrance into the parking lot.” (ECF No. 61 at 4, ¶ 4; ECF No. 62 at 2, ¶ 4.) As Watts returned to her car around 5:30 p.m., she stepped into a “pothole” (as she describes it) in the asphalt immediately adjacent to the concrete walkway, planted her foot, and fell “straight forward.” (ECF No. 59 at 3, ¶¶ 8-9; ECF No. 61 at 3-4, ¶¶ 8-9; id. at 4, ¶ 7; ECF No. 62 at 2, ¶ 7.)[2] While the parties do not address the nature of Watts's injury or damage in the statements of material facts, Watts's introduction to her response brief states that she “suffered permanent nerve damage in her leg as a result of [a] foot fracture she sustained” in the parking lot. (ECF No. 61 at 1.) The Court will thus presume for purposes of this Motion that Watts suffered an injury as a result of her fall.

         Because of the time of day, visibility was limited. Watts could not see the “pothole” where she stepped due to the “late hour, the darkness, and the low lighting in place.” (ECF No. 59 at 2, ¶ 2; ECF No. 61 at 2, ¶ 2.) Home Depot says that Watts “stepped into an allegedly pitch black space without looking down and without knowledge as to what was there.” (ECF No. 59 at 2, ¶ 7; ECF No. 61 at 3, ¶ 7.) On the evening that Watts fell, Home Depot did not have any warning signs or notices about walking surfaces in the parking lot. (ECF No. 61 at 5, ¶ 13; ECF No. 62 at 3, ¶ 13.)

         The main factual disagreement between the parties is the characterization of the quality of the asphalt adjacent to the walkway. Home Depot describes the “pothole” as a “common, slight and shallow depression in the asphalt surface of the front end of a parking space that corresponds to the location where the front tires of parked vehicles are typically situated.” (ECF No. 59 at 2, ¶ 4.) Home Depot submits photographs of the “pothole, ” which Watts agrees accurately depict the “pothole” as it existed at the time of Watts's fall, with the exception of the orange paint, which was applied after her fall. (ECF No. 59 at 2, ¶¶ 4-6; ECF No. 61 at 3, ¶¶4-6; see ECF No. 59-3.) Watts criticizes this definition because Home Depot has presented no record support to show that such a depression is a common condition and because whether a pothole is “slight and shallow” is a matter on which reasonable minds could differ. (ECF No. 61 at 3, ¶ 4.)

         Watts characterizes the “pothole” as a “hole . . . approximately 2.5-3 inches deep, and approximately 12" by 12" in surface area, or about the size of a basketball or cantaloupe.” (ECF No. 61 at 4, ¶ 8.) Home Depot responds that the “depression is not a hole, was never actually measured by anyone, and the size was purely an estimate provided in response to cross examination.” (ECF No. 62 at 3, ¶ 8.) It also emphasizes that Watts's comparison to a basketball or cantaloupe is misleading because the depression was not deep and “[m]ore like an oversized but upside down frisbee.” (Id. at 2-3, ¶ 4 n. 1.)

         The parties agree, however, that the “pothole” was within the boundaries of the Home Depot parking lot where Home Depot expected and intended its customers to park, and adjacent to the sidewalk, where Home Depot expected and intended its customers to walk. (ECF No. 61 at 4, ¶¶ 9-10; ECF No. 62 at 3, ¶¶ 9-10.)

         Home Depot managers inspect the Store's outdoor walking surfaces daily to monitor conditions and determine whether repairs or maintenance are needed. (ECF No. 61 at 4, ¶ 11; ECF No. 62 at 3, ¶ 11.) This routine includes inspecting for potholes. (ECF No. 61 at 4, ¶ 11; ECF No. 62 at 3, ¶ 11.) When there is a defect in the parking lot that might “impede the customer service experience, ” the Store managers can submit a “FixIt” ticket to Home Depot's Building Services at the corporate headquarters. (ECF No. 61 at 4, ¶ 14; ECF No. 62 at 3, ¶ 14; see ECF No. 61-5 at 6.)

         In May 2014 and July 2015, FixIt tickets were submitted to fix potholes in the parking lot at the Store. (ECF No. 61 at 5, ¶ 15; ECF No. 62 at 4, ¶ 15.) T he July 2015 FixIt ticket, submitted two days after a pregnant customer fell after stepping in a pothole in the parking lot, stated that the Store parking lot had “multiple and scattered potholes . . . many . . . big enough and deep enough that they pose serious safety concerns.” (ECF No. 61 at 5, ¶¶ 16-17; ECF No. 62 at 4, ¶¶ 16-17.) Home Depot's Rule 30(b)(6) witness was unable to testify whether any work or asphalt repairs occurred in the parking lot as the result of the July 2015 FixIt ticket. (ECF No. 61 at 5, ¶ 18; ECF No. 62 at 4, ¶ 18.) After Watts was injured, Home Depot filled the “pothole” where Watts fell. (ECF No. 62 at 3, ¶ 12.)


         Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if 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 also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A 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). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

         Where “the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden on a motion for summary judgment 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). If the movant meets this burden, the burden shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671 (internal quotation marks omitted). A party must support an assertion that a fact is genuinely disputed by “citing to particular parts of materials in the ...

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