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Young v. Walmart, Inc.

United States District Court, D. Colorado

October 8, 2019

NANCY YOUNG, Plaintiff,
v.
WALMART, INC., an Arkansas Corporation authorized to do business in the State of Colorado, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION TO STRIKE OPINION AS MOOT

          WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE

         Plaintiff Nancy Young (“Young”) brings this case against Defendant Walmart, Inc. (“Walmart”), for injuries sustained in a Walmart parking lot in Cortez, Colorado (the “Store”). Young brings a statutory premises liability claim against Walmart under the Colorado Premises Liability Act (“CPLA”), Colo. Rev. Stat. § 13-21-115.

         The matter is before the Court on Walmart's Motion for Summary Judgment (the “Motion”) and Walmart's “Partially Unopposed Motion to Strike or Limit the Opinions of Plaintiff's Treating Expert, Brinceton Phipps, M.D.” (“702 Motion”). (ECF Nos. 43 & 63.) For the reasons discussed below, the Court grants the Motion and denies the 702 Motion as moot.

         I. BACKGROUND

         The following summary is drawn from the parties' statements of material facts. The vast majority of the facts are undisputed.

         In May 2016, the Store set up an outdoor garden center in its parking lot, as it had for each of the past five years. (ECF No. 43 at 3, ¶¶ 4-6; ECF No. 58 at 6-7, ¶¶ 4-6.) The garden center was cordoned off from the rest of the parking lot with a rope and “caution cones.” (ECF No. 43 ¶ 8; ECF No. 58 ¶ 8.) Between 2011 and June 7, 2016, there were no issues or injuries reported concerning the safety of the garden center and its rope perimeter. (ECF No. 43 ¶ 7.) Young contends that Walmart inaccurately states that the garden center was used “without issue, ” claiming that there may be issues or injuries that were not reported, and that the only way to definitively know would be to watch surveillance tapes for the time period. (ECF No. 58 ¶ 7.) Young does not, however, suggest that she has undertaken such a review or that there are, indeed, unreported issues or injuries. (Id.) It suffices to say that there is no evidence before the Court of any such reported issues or injuries.

         On June 7, 2016, Young and nonparty-at-fault Angelita Randall-Salazar both went to the Store and parked in the parking lot. Randall-Salazar drove her Chevy pickup truck with a ball trailer hitch attached to the rear of her vehicle. (ECF No. 43 at 3, ¶ 10; ECF No. 58 at 7-8, ¶ 10; ECF No. 61 at 3, ¶ 10.) She backed into a parking space adjacent to the garden center, checked to make sure that her bumper was not hitting anything in the garden center, and entered the Store. (ECF No. 43 ¶¶ 11-12; ECF No. 58 at 8, ¶¶ 11-12; ECF No. 61 ¶¶ 11-12.) At some point, the garden center rope barrier got hooked on Randall-Salazar's trailer hitch. (ECF No. 43 ¶ 13; ECF No. 58 ¶ 13.)

         When Randall-Salazar returned to her truck, she did not walk behind the truck. There is no evidence to suggest that Randall-Salazar noticed that the rope had looped around her trailer hitch or that there were any circumstances that would have made her think that the rope had attached to the vehicle. (ECF No. 61 at 3, ¶ 15.) Randall-Salazar drove off, not realizing that she pulled behind her the rope barrier of the garden center. As she did so, the rope was pulled across the parking lot and became taut, eventually “forming a V-wedge that closed in a scissor-like action upon the lower legs of [Young].” (ECF No. 43 at 4, ¶¶ 16-19.) Randall-Salazar heard people screaming, looked in her rearview mirror, and saw Young lying on the ground. (Id. at ¶ 20.) She stopped her vehicle and went over to Young. (Id.)

         As a result of being taken out at the knees by the rope attached to Randall-Salazar's truck, Young contends that her pre-existing pigmented villonodular synovitis in her left knee was exacerbated, and that she suffered other injuries. (ECF No. 12-2 ¶ 10.)

         II. LEGAL STANDARD

         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). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to the factfinder or, conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52; Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000). 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).

         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. 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, as here, “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 record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, . . . admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).

         “[C]onclusory and self-serving statements are insufficient to survive summary judgment.” Ford v. West, 222 F.3d 767, 777 (10th Cir. 2000). Likewise, “general denials, or mere argument of an opposing party's case cannot be utilized to avoid summary judgment, ” Pasternak v. Lear Petroleum Expl., Inc., 790 F.2d 828, 834 (10th Cir. 1986), and “[v]ague, conclusory statements do not suffice to create a genuine issue of material fact, ” Ford, 222. F.3d at 777. Rather, “[t]o survive summary judgment, a nonmoving party must set forth specific facts showing that there is a genuine issue for trial as to those ...


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