Compton v. Target Corporation

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MELISSA COMPTON, Case No. 2:24-cv-00937-TLF 7 Plaintiff, v. ORDER ON DEFENDANT 8 TARGET CORPORATION’S TARGET CORPORATION, MOTION FOR SUMMARY 9 JUDGMENT Defendants. 10 11 Before the Court is Target Corporation dba Target Store #1947’s (“defendant”) 12 Motion for Summary Judgment. Dkt. 26. 13 The parties have consented to the jurisdiction of a Magistrate Judge. Dkt. 13. 14 Considering each party’s briefs, the oral argument, and the record, the Court 15 DENIES defendant’s motion for summary judgment because a genuine issue of material 16 fact exists. A reasonable jury could return a verdict for plaintiff concerning the nature of 17 defendant’s business and its methods of operation, and whether the existence of the 18 alleged unsafe condition was reasonably foreseeable. These factual issues are properly 19 resolved by a jury. 20 I. FACTUAL BACKGROUND 21 This case was removed from Washington state court based on diversity of 22 citizenship. Dkt. 1. It arises from a slip and fall incident that occurred on December 28, 23 2022 at a Target store located in Federal Way, Washington. Dkt. 1-2, Complaint ¶ 2. 24 1 Plaintiff Melissa Compton alleges that, while walking towards the clothing and cosmetics 2 sections of the store, she suddenly slipped and fell on a “slick, almost greasy” area of 3 the floor, although she did not see any liquid. Dkt. 31, Declaration of Melissa Compton 4 ¶¶ 3-4. She states her right leg flew out from under her, causing her to fall with full force 5 on her right elbow. Id. ¶ 4; see also Dkt. 32, Declaration of Sydney Greene ¶ 6. In her 6 deposition, plaintiff states it was raining outside and she wiped her shoes at the 7 entrance immediately after entering defendant’s store. Dkt. 27, Declaration of Sarah 8 Tuthill-Kveton, Deposition of Melissa Compton, Ex. A, at 22:20-22. 9 Plaintiff was accompanied by her two stepdaughters and one of their friends, 10 Sequoia Brookes, who submitted a declaration stating she “saw [plaintiff] slip and fall 11 inside the store,” and observed “a wet spot on the floor” that “appeared to be a clear 12 liquid.” Dkt. 34, Declaration of Sequoia Brookes ¶¶ 2–5. Ms. Brookes “assumed it was 13 water on the tile floor.” Id. ¶ 5. 14 Immediately after the fall, plaintiff exited the store – she testified she felt as 15 though she “was going to throw up” and became really “hot and nauseous” as her 16 “elbow was throbbing.” Dkt. 27, Tuthill-Kveton Decl., Deposition of Compton, Ex. A, at 17 19:1-6; see also Dkt. 34, ¶ 7. Although plaintiff did not report the incident to any store 18 member, a Target employee put a “Wet Floor” sign next to the area where plaintiff fell 19 shortly after the incident. Dkt. 27, Ex. A, at 21:3-6; Dkt. 32, Sydney Greene Decl., ¶ 6; 20 Dkt. 34, ¶ 7. Plaintiff quickly left the store, went home to change her clothes, and went 21 to the emergency room with her husband. Dkt. 27, Ex. A, at 21:16-25. Plaintiff returned 22 at a later date and took photographs of the area where she fell. Dkt. 31, Ex. A; Dkt. 27, 23 Ex. A, at 22:1-5. 24 1 Plaintiff’s medical evidence shows she was diagnosed with a closed olecranon 2 fracture in her right elbow and was initially prescribed oxycodone for her pain and given 3 a sling. Dkt. 29-9, Medical Record Review by Dr. Jonathan Ritson, at 2. She underwent 4 elbow surgery on January 9, 2023 and had supplemental surgery on November 9, 2023 5 to remove hardware. Id. at 2-4. 6 Plaintiff’s medical evidence also shows she attended physical therapy for her 7 injury from February 16, 2023 to March 17, 2023, with signs of improvement from her 8 initial visit. Id. at 4-5. Plaintiff’s medical expert, Dr. Ritson, concluded the residual loss of 9 range of motion could be regained with limited physical therapy, as well as full-strength. 10 Id. at 7. 11 Plaintiff asserts it was raining on the day of the incident and provided evidence 12 that defendant admitted they are aware spills occur, that spills are hazardous, and that 13 policies and practices, such as Target’s training materials and employee handbooks, 14 show that Target knows customers track water into the store. Dkt. 31, ¶ 4; Dkt. 28, Pl.’s 15 Resp. to Def.’s Mot. Summ. J., at 6. Plaintiff retained safety expert Levi Dixon, who 16 opined defendant’s use of vinyl composite tile (“VCT”), which becomes slippery when 17 wet, combined with the foreseeable presence of liquid from inclement weather or store 18 merchandise, presented a safety hazard. Dkt. 30, Declaration of Levi Dixon, at 2. 19 Dixon’s report discussed defendant’s internal spill response policies and the store’s 20 alleged failure to implement non-slip flooring in moisture-prone areas. Id. at 2-3. 21 Plaintiff has submitted examples of defendant’s spill response guidelines and 22 protocols (Dkt. 29, 37), including: 23 24 1 • Employees are instructed to know which spill they can clean and clean 2 them immediately. Ex. 29-1, Target Corporation’s Safety Programs and 3 Process – Safety Fundamentals guidelines. 4 • Employees are reminded of the importance of spill stations as “they 5 contain the items necessary for team members…. to clean up spills and 6 thereby prevent slip and fall injuries” to team members and guests. Dkt. 7 29-2, Spill Stations and Supplies guidelines. The spill stations are “located 8 throughout the store around key traffic areas” and typically include sales 9 floor safety cones and items necessary to clean up spills. Id. 10 • All spills must be taken seriously and cleaned up promptly. Dkt. 29-3, 11 Safety Programs and Process – Cleaning Spills guidelines. Each store 12 has various substances that could cause a slip and fall and result in an 13 injury. Id. Employees are expected to encounter different spills and use 14 the right materials to protect themselves and customers. Id. “Spills must 15 be wiped up, cleaned and dried before the area is considered safe.” 16 Employees must identify the spill, carry a spill square during every shift to 17 “[w]ipe up any small (under 16 ounces) food beverage or water spill,” 18 “[g]uard and block off spill with ‘Wet Floor’ caution signs,” and follow other 19 general clean up and disposal procedures. Id. 20 • Employees are on notice that “[f]ood, beverage, and water spills should be 21 cleaned up immediately” and are instructed to “[a]lways carry a spill pad” 22 so they “can address these types of spills right away.” Dkt. 29-4, Safety 23 Programs and Process – Safety Expectations for Team Members. 24 1 • Employees must ensure “spills are cleaned immediately, and spill stations 2 are stocked with supplies,” they “clean as they go,” and “floors are free of 3 liquid or debris; front end is clear of water, snow, ice melt, etc.” Dkt. 29-5, 4 Slip, Trip & Fall guidelines. The policy also highlights the importance of 5 having a spill pad as an employee to “immediately clean water, food, or 6 beverage spills.” Id. 7 • Spills on the tile floors on the sales floor must be blocked off and cleaned 8 up immediately. See Dkt. 29-6, Interior Services Maintenance Standards 9 Reference Guide. 10 • Employees should be prepared to address wet floors quickly when wet 11 weather is expected. Dkt. 26-7, Stay Safe During Rain, Ice & Snow. 12 Employees must carry a spill square and “set out wet floor signs when it is 13 slippery or there is a spill.” Id. 14 • Every employee can and is expected to clean up common nonhazardous 15 spills, such as food, drink, rain, or snow. Dkt. 37, video of defendant’s 16 training lesson “Hazard communication bloodborne pathogen awareness.” 17 Once an employee sees a spill, they must guard the spill to prevent others 18 from approaching, and, if required, call for help and set up caution cones 19 to block the area. Id. A spill is never to be left unattended. Id. 20 Defendant asserts plaintiff did not offer evidence as to the “existence, nature, or 21 duration of any substance on the floor” and emphasizes plaintiff admitted she did not 22 see exactly what she slipped on. See Dkt. 26, at 3–4; Dkt. 31, ¶ 4. Plaintiff has not 23 24 1 submitted documentation regarding prior spills or incidents in the area or evidence 2 defendant failed to conduct routine floor inspections. See generally Dkt. 28. 3 4 II. LEGAL STANDARD 5 A. Summary Judgment 6 Summary judgment is proper if “there is no genuine dispute as to any material 7 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 8 fact is material if it “might affect the outcome of the suit,” and a dispute of fact is genuine 9 if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 10 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 11 Once a motion for summary judgment is properly made and supported, the 12 opposing party “must come forward with specific facts showing that there is a genuine 13 issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 14 (1986) (quotation marks omitted). The Court then views the facts in the light most 15 favorable to the nonmoving party and resolves any ambiguity in that party's 16 favor. See Bator v. Hawaii, 39 F.3d 1021, 1026 (9th Cir. 1994). The Court may not 17 make credibility determinations or weigh evidence. See Anderson, 477 U.S. at 248–49, 18 255. 19 Ultimately, summary judgment is appropriate against a party who “fails to make a 20 showing sufficient to establish the existence of an element essential to that party's case, 21 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 22 477 U.S. 317, 322 (1986). Under the Erie doctrine, federal courts sitting in diversity 23 24 1 apply state substantive law and federal procedural law. Erie R.R. Co. V. Tompkins, 304 2 U.S. 64, 58 (1938). 3 III. Discussion 4 A. Negligence Framework under Washington State Law 5 Under Washington law, a plaintiff asserting negligence must establish: (1) 6 defendant owed a duty to plaintiff (“duty”); (2) defendant breached that duty (“breach”); 7 (3) plaintiff sustained an injury (“harm”); and (4) a proximate cause between the breach 8 and the injury (“cause-in-fact”). See Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 9 611-12 (2021) (citing Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28 10 (1994)). 11 In the context of premises liability, “the cause-in-fact element traditionally 12 requires proof that the defendant had actual or constructive notice of the alleged unsafe 13 condition.” Galassi v. Lowe's Home Centers, LLC, 4 Wn.3d 425, 428 (2025) (citing 14 Johnson, 197 Wn.2d at 612). Where there is no evidence of actual or constructive 15 notice, Washington recognizes plaintiff need not prove actual or constructive notice if 16 the nature of the business and its methods of operation make the existence of a 17 hazardous condition reasonably foreseeable. Pimentel v. Roundup Co., 100 Wn.2d 39, 18 49 (1983). 19 This rule applies only where the risk of harm is inherent in the manner in which 20 the business regularly operates. Johnson, 197 Wn.2d at 614 (citing Wiltse v. Albertson’s 21 Inc., 116 Wn.2d 452, 461). Since “the reasonability foreseeability exception is used to 22 establish cause in fact, ‘whether it applies is fundamentally a question of fact for the 23 jury’” unless the facts are not disputed and ‘reasonable minds could not differ.’” Galassi, 24 1 4 Wn.3d at 440 (quoting Moore v. Fred Meyer Stores, Inc., 26 Wn. App 2d. 769, 777 2 (2023)). 3 B. Reasonable Foreseeability Under Pimentel and its Progeny 4 In Pimentel, plaintiff, while browsing magazines, was injured when struck by a 5 can of paint that had been placed by an employee at the base of the magazine rack. 6 Pimentel, 100 Wn.2d at 40-41. Neither plaintiff nor anyone around her noticed the can 7 prior to being struck and the trial court instructed the jury that the store could only be 8 liable if it had actual or constructive notice. Id. 9 On appeal, the Washington Supreme Court recognized that evolving retail 10 practices – particularly those involving customer self-service – made the existence of 11 certain hazards reasonably foreseeable. Id. at 46 (“[M]odern techniques of 12 merchandising necessitate some modification of the traditional rules of liability.”). The 13 Court held that a plaintiff would not have to prove actual or constructive notice: 14 “[W]hen the nature of the proprietor's business and his methods of operation are such that the existence of unsafe conditions on the premises is 15 reasonably foreseeable. This exception merely eliminates the need for establishing notice and does not shift the burden to the defendant to 16 disprove negligence. The plaintiff must still prove that defendant failed to take reasonable care to prevent the injury.” 17 18 Id. at 49. Since adopting this framework, the Washington Supreme Court has extended 19 this logic beyond traditional customer self-service environments to encompass a broad 20 range of operational models – particularly those in which certain hazards are a 21 predictable result and related to how the business functions. Johnson, 197 Wn.2d at 22 618 (“The self-service requirement of the exception no longer applies.”). 23 24 1 In Johnson, the Court allowed a plaintiff who slipped in a store entryway on a 2 rainy day to proceed under the Pimentel exception. Id. at 622. Although plaintiff did not 3 see any water on the floor before falling, and the store clerk testified there had been no 4 similar incidents in that same area prior, the store’s own policies acknowledged the risk 5 by requiring wet floor signs during the rain. Id. at 620. 6 The store clerk in Johnson also testified rainy weather routinely led to wet and 7 muddy footprints near the entrance. Id. The Court concluded that the presence of water 8 in the entry way was a foreseeable result of the store’s operations during inclement 9 weather, noting customers coming in while it is raining is an inherent condition of doing 10 business. Id. Although the Court found there was evidence in the record to contradict 11 the reasonable foreseeability exception, there was sufficient support to uphold a jury 12 verdict in plaintiff’s favor. Id. at 621. 13 Similarly, in Galassi, the Washington Supreme Court affirmed the Court of 14 Appeals’ decision reversing summary judgment for the defendant and remanded a case 15 in which the plaintiff was injured by a roll of wire fencing that fell from a high shelf. See 16 Galassi, Wn.3d at 446. The Court emphasized the exception is a way for plaintiff to 17 prove cause-in-fact. Id. at 122. 18 The burden is not shifted to the defendant to disprove negligence; the store’s 19 self-service model encouraged customers to handle and restock merchandise without 20 employee assistance. Id. at 437. The Court held a jury could reasonably conclude it 21 was foreseeable for a customer to improperly place a heavy item on a high shelf, 22 creating a falling hazard. Id. at 442-43. 23 24 1 The Court rejected the argument that a plaintiff must identify exactly how the 2 hazard was created or must set forth evidence of prior similar incidents. Id. at 440-41. 3 Instead, it looked to the store’s own safety procedures, which required employees to 4 correct improperly shelved merchandise and conduct daily safety walks and concluded 5 these policies supported the foreseeability of such risks. Id. at 443. When a hazard 6 stems directly from a business’s method of operation, foreseeability becomes a 7 question of fact for the jury. Id. at 440. 8 Here, it is undisputed plaintiff was a business invitee of Target, and defendant 9 therefore owed her a duty of care at the time she fell and sustained injury. To survive 10 summary judgment, plaintiff must show breach of the duty and causation by establishing 11 the existence of an unsafe condition, and that the defendant had actual or constructive 12 notice, or that the facts show an exception to the notice requirement. Taking the facts in 13 the light most favorable to the non-moving party, plaintiff has shown there is a genuine 14 dispute of material fact as to the exception of Pimentel, Johnson, and Galassi. 15 Plaintiff asserts she fell near the cosmetics and clothing aisles of defendant’s 16 store during rainy weather. Dkt. 31, ¶¶ 3-4. Although plaintiff states she did not see a 17 spill, her stepdaughters’ friend, Sequoia Brookes, asserts in her declaration that she 18 observed a clear liquid on the floor shortly after plaintiff’s fall. Dkt. 34, ¶¶ 2–5.1 A Target 19 20 1 Defendant argues that Brookes’ declaration creates a “sham fact issue,” but that phrase conflates two distinct issues – the sham affidavit doctrine and self-serving affidavits. Dkt. 36, at 8. The sham affidavit 21 doctrine applies only when a party presents a later sworn statement that directly contradicts prior sworn testimony without explanation. Yeager v. Bowlin, 693 F.3d 1076, 1080-81 (9th Cir. 2012); see also Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908-09 (6th Cir. 2006). It does not apply here because Ms. 22 Brookes is a third-party witness who has not been deposed. As for the self-serving nature of the declaration, the Ninth Circuit has held self-serving affidavits are not inherently disqualified and may create 23 a genuine issue of material fact. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497-98 (9th Cir. 2015). Defendant’s concerns go to the weight and credibility of Ms. Brookes’ testimony – questions for the jury 24 1 employee placed a “Wet Floor” sign in the area after the incident. Dkt. 27, Ex. A at 21:3- 2 6; Dkt. 32, ¶ 6; Dkt. 34, ¶ 7. Defendant’s internal policies show it was aware of wet 3 conditions that could create safety risks. Its policies and procedures instruct employees 4 to take precautionary measures, such as carrying and using spill pads, patrolling for 5 hazards, and posting wet floor signs during inclement weather. See Dkt. 29, Nos. 1-8. A 6 reasonable jury could find defendant’s policies and procedures reflect defendant’s 7 recognition that its operations regularly expose customers to liquid on the floor, 8 including “common nonhazardous spills, such as food, drink, rain or snow.” Id. at 29-8, 9 see also, opinion evidence by plaintiff’s expert, Levi Dixon, Dkt. 30, at 2, 14, 22-24. 10 Under Pimentel, a plaintiff may establish notice by showing the hazardous 11 condition was a foreseeable consequence of the defendant’s mode of operation. 12 Pimentel, 100 Wn.2d at 47-48. Plaintiff’s retained expert further contends defendant 13 does not implement “passive” safety controls, such as using slip-resistant flooring or 14 applying friction-enhancing coatings. Id. at 26-27. He observed that defendant relied on 15 “active” safety measures which require employees to identify and clean up spills when 16 noticed, and to carry spill pads or set out caution signs as needed. Id. According to Mr. 17 Dixon, these reactive human-dependent protocols are known to be unreliable, 18 particularly in high-traffic environments. Id. Inspections may be missed, spills may go 19 unnoticed, and transparent liquids may be difficult to detect on glossy VCT, especially 20 under lighting conditions that produce reflective glare. Id. at 17, 27. 21 22 23 as triers-of-fact; a judge is precluded from making any credibility determinations at the summary judgment 24 stage. See Anderson 477 U.S. at 255. 1 This is analogous to the Court’s reasoning in Galassi, where the foreseeability of 2 improperly shelved merchandise falling from a high rack was not negated by the 3 absence of prior similar incidents; instead, the Court emphasized the store’s operational 4 model and internal procedures as evidence the risk was part of the way the business 5 functioned. See Galassi, 4 Wn.3d at 442. Therefore, a reasonable jury could find that 6 Mr. Dixon’s opinion and defendant’s own policies support the conclusion the presence 7 of a slippery floor was not random or unforeseeable, but a predictable result of 8 defendant’s self-service operations. 9 In contrast, the cases cited by defendant in support of summary judgment are 10 distinguishable. See Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649 (1994); Tavai v. 11 Walmart Stores, Inc., 176 Wn. App. 122 (2013); and Gaytan v. Lowe’s Home Centers, 12 LLC, No. C24-0470-JCC, 2025 WL 1115412 (W.D. Wash. Apr. 15, 2025). In each of 13 those cases, the court granted summary judgment because the plaintiffs failed to 14 connect the hazard to the nature of defendant’s business. 15 For example, courts have declined to apply the mode of operation theory when 16 the hazard, such as gravel in a parking lot or unexplained substance in a mall corridor, 17 was disconnected from any inherent risk associated with the store’s layout, 18 merchandise, or customer conduct. See Gaytan, 2025 WL 1115412, at *5; Ingersoll, 19 123 Wn.2d at 654-55. In those cases, there was no evidence that the business’s 20 operational model made the hazard foreseeable. 21 In Tavai, for example, the plaintiff slipped fifteen feet from a checkout area, and 22 her expert opined only generally about slippery floors. Tavai, 176 Wn. App. at 133-34 23 (holding plaintiff failed to meet her burden to show that Walmart was negligent in 24 1 selecting its flooring as she presented no evidence that alternative materials would have 2 been less slippery when wet). There was no evidence connecting the hazard to 3 Walmart’s business operations. Id. at 131-32. 4 In Gaytan, the plaintiff fell on sand or gravel in defendant’s parking lot but failed 5 to explain how the debris came to be there or show that such a risk was inherent to 6 defendant’s operations. See Gaytan, 2025 WL 1115412, at *3 (concluding “[w]hether or 7 not the Pimentel exception applies is therefore, necessarily, a fact-intensive inquiry” and 8 holding the exception did not apply because plaintiff could not explain how the sand or 9 gravel ended up in a shopping cart corral and defendant did not have a specific policy of 10 inspecting the corral). And, in Ingersoll, the plaintiff fell in a mall hallway with no 11 evidence linking the spill to any aspect of the mall’s business practices. Ingersoll, 123 12 Wn.2d at 654-55 (holding a mall not liable when no evidence established a causal link 13 existed between its operations and an alleged substance on the floor). 14 Here, by contrast, plaintiff has presented specific evidence, supported by 15 percipient witness testimony, expert opinion, and defendant’s internal policies, to raise a 16 genuine dispute of material fact about whether a liquid from an unspecified source 17 located on the floor in an area where customers are allowed to be walking, is a 18 foreseeable risk, especially during wet weather and in customer walkways. It does not 19 appear that Washington law requires plaintiff to show the specific source of the liquid, or 20 how the liquid came to be in that location. 21 The Washington Court of Appeals recently overturned a jury verdict based on 22 instructional error on the issue of Pimentel in Moore v. Fred Meyer Stores, Inc., 26 Wn. 23 App.2d 769, 776-778 (2023), review granted, 2 Wash.3d 1001 (November 8, 2023). 24 1 That case is pending in the Washington Supreme Court, and that Court’s decision may 2 provide additional clarity concerning Washington law in this context. 3 4 IV. Conclusion 5 Because a genuine issue of material fact exists regarding the foreseeability of the 6 alleged hazard and whether the alleged safety issue is connected to defendant’s 7 operational practices, the Court concludes there are genuine disputes of material facts 8 on the issues of breach and causation. Therefore, defendant’s Motion for Summary 9 Judgment (Dkt. 26) is DENIED. 10 Dated this 12th day of August, 2025. 11 A 12 Theresa L. Fricke United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24