Woessner v. Home Depot USA Inc

— 1 — — 2 — — 3 — — 4 — — 5 — UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE — 7 — MARY WOESSNER, CASE NO. 2:22-cv-00275-JHC — 8 — Plaintiff, ORDER GRANTING IN PART AND — 9 — DENYING IN PART PLAINTIFF’S v. MOTION FOR PARTIAL SUMMARY — 10 — JUDGMENT HOME DEPOT USA, INC., — 11 — Defendant. — 12 — — 13 — I — 14 — INTRODUCTION — 15 — This slip and fall negligence action arises out of injuries Plaintiff Mary Woessner — 16 — allegedly sustained at one of Defendant Home Depot USA, Inc.’s stores. Dkt. # 1-1. Before the — 17 — Court is Plaintiff’s motion for partial summary judgment. Dkt. # 15. The Court has considered — 18 — the parties’ submissions in connection with the motion, the balance of the case file, and the — 19 — applicable law. Being fully advised, for the reasons below, the Court GRANTS in part and — 20 — DENIES in part Plaintiff’s motion. — 21 — — 22 — — 23 — — 24 — l II BACKGROUND — 2 — A. The Incident — 3 — On December 20, 2020, at around 9:30 a.m., Plaintiff was shopping with her daughter, — 4 — Lisa Woessner,! at a Home Depot store in Kent, Washington. Dkt. # 15-1 at 31, 34, 111-12. — 5 — Plaintiff testified at her deposition as follows: She walked through a set of sliding doors leading — 6 — to the store’s outdoor garden center. /d. at 40. Once in the garden center, Plaintiff turned left to — 7 — follow Lisa down an aisle. /d. at 43. As she walked toward Lisa, Plaintiff did not see any bird — 8 — droppings, dirt, or other debris on the ground in front of her; the aisle was clear. /d. at 43, 45. — 9 — She saw no birds or evidence of birds anywhere above her. /d. at 43. Lisa, who was ahead of — 10 — Plaintiff, indicated for Plaintiff to turn around and head back down the same aisle from which — 11 — she came. /d. at 43-44. Plaintiff turned around, walked a step or two, and then slipped and fell. — 12 — Id. at 39-40. She said she does not know what caused her to fall: “I don’t. . . know anything — 13 — other than I was on the ground all of a sudden.” /d. at 48. The photograph below, taken shortly — 14 — after her fall, shows Plaintiff on the ground: 15 * — 16 | Sa 17 | | N rs \ 18 é a “4 19 Be 20 □□□ » 7 . 21 ; “> ae we aa ‘y 22 \ - a al ae . — 23 — ' For clarity, because Plaintiff and her daughter share the same last name, this order refers to Lisa 24 Woessner by her first name. The Court means no disrespect. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL 1 Id. at 104. In a declaration, Lisa stated: “I did not realize what had caused [Plaintiff's] fall until I 2 saw bird droppings under her and covering her clothing and hands.” Dkt. # 15-2 at 2. Plaintiff 3 provided a photograph showing the bottoms of the shoes Plaintiff was wearing when she fell: 4 Ne hy ‘4 al es big □□□ rad 5 re A Rag f a" ae 6 — ws — 7 — — 8 — Lo 9 Seis game Pee eK 10 ee < en hy a 11 ~« oS — 12 — Dkt. # 16 at 18. — 13 — At her deposition, Plaintiff stated that she did not remember seeing any warning signs — 14 — upon entering or inside the garden center. Dkt. # 15-1 at 40, 44. Debbie Klavuhn, the assistant — 15 — operations manager at the Home Depot in Kent, testified as a Rule 30(b)(b) witness on behalf of — 16 — Home Depot. Dkt. # 15-1 at 2, 121. She testified that Plaintiff fell next to a post that displayed, — 17 — at the time of the fall, a permanent sign warning of slippery floors. /d. at 148; see also Dkt. # 18 — 18 — at 1 (Klavuhn declaration stating that at the time of Plaintiff's fall, a permanent warning sign was — 19 — placed next to where she fell). — 20 — Home Depot conducts a store safety inspection each morning, which includes ensuring — 21 — that the aisles are clear of any slip hazards. Dkt. # 15-1 at 153-56. Klavuhn explained that — 22 — Home Depot trains its employees to “isolate and correct” slip hazards whenever they encounter — 23 — them. /d. at 143-45. On the date of Plaintiff's fall, Klavuhn said that she “walk[ed] the store” — 24 — ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL 1 the morning before the incident, and that she noticed no bird droppings on the ground in the 2 garden center. Id. at 148–49. Klavuhn cleaned due to bird droppings two or three times during 3 her eight years of employment at Home Depot; she stated that other employees, who opened the 4 store for the day, cleaned due to droppings more frequently. Id. at 121–22, 142. Klavuhn stated, 5 when cleaning, she would first put out warning cones around the bird droppings. Id. at 141–42. 6 She would wash and scrub the area, put out “wet slip” signs, and then remove the warnings once 7 the area dried. Id. at 141–42. 8 When Plaintiff fell in December 2020, the presence of bird droppings in the garden center 9 had been an ongoing problem for the Home Depot in Kent. See id. at 141 (Klavuhn said that, to 10 her knowledge, the first work order relating to bird droppings was submitted in 2018); Dkt. # 1911 1 at 2 (Home Depot work orders dating to 2018 requesting removal of bird droppings in the 12 garden center). To solve this problem, the Home Depot in Kent implemented several strategies 13 to deter the presence of birds in its garden center. See Dkt. # 17 at 2. In 2020, Home Depot 14 submitted work orders to outside vendors, including Superior Facility Service Group, to: (1) 15 remove bird carcasses; (2) power wash bird droppings; and (3) install scent dispensers and 16 “Avian Block pouches” to deter birds from perching, among other bird mitigation strategies. Id. 17 Plaintiff has retained Levi Dixon, a human factors engineer with over a decade of 18 experience in “safety and risk management,” as an expert witness to evaluate Plaintiff’s fall and 19 Home Depot’s conduct before this incident. Dkt. # 15-4 at 1, 9–18. Mr. Dixon drafted a report 20 based on surveillance video, photographs, discovery responses, and deposition testimony. Id. at 21 9–10. Mr. Dixon opined that: 22 1. The accumulation of bird droppings on the walkway created a hazardous condition for anyone walking in the general area. 23 2. Prior to [Plaintiff’s] incident, Home Depot was aware that bird droppings were routinely contaminating the walkway in the general area of this incident, 24 thereby creating a hazardous condition for anyone walking in the general area. 1 3. Despite appreciating that the walkway was routinely becoming contaminated with bird droppings, Home Depot failed to implement safety measures to 2 effectively mitigate/minimize the hazard, much less even warn customers of the hazard. — 3 — Id. at 11. — 4 — B. Medical Treatment and Expenses — 5 — Plaintiff has also retained David E. Spanier, MD, a board-certified physician, as an expert — 6 — witness to assess Plaintiff’s medical treatment and associated expenses. Dkt. # 15-3 at 1–2, 4. — 7 — Dr. Spanier drafted a report based on an interview and examination of Plaintiff and his review of — 8 — her medical records, including billing records. Id. at 12. Dr. Spanier opined that Plaintiff’s — 9 — “right proximal femur fracture, left intra-articular distal radius fracture, and left non-displaced — 10 — scaphoid fracture are all causally related to the subject collision on a more probable than not — 11 — basis.” Id. at 18. Dr. Spanier identified the following medical treatments for Plaintiff’s injuries — 12 — related to her fall: — 13 — Transportation by Tri-Med Ambulance. 14 Evaluation and treatment at Valley Medical Center, including all imaging. Transportation by Falck. 15 Evaluation and treatment at Overlake Medical Center[,] including all imaging and surgery. 16 Evaluation and treatment by Jeremy Chan, MD. Evaluation and treatment by Thomas Stoll, MD. 17 Evaluation and treatment at Kaiser Permanente as they pertain to [Plaintiff’s] subject fall related injuries. — 18 — Id. at 19. In Dr. Spanier’s opinion, “all of the evaluation and treatment that [Plaintiff] received — 19 — for her subject fall related injuries [were] reasonable, medically necessary, and causally related — 20 — to the subject fall on a more probable than not basis.” Id. Dr. Spanier identified these expenses — 21 — that Plaintiff incurred based on the above medical treatments: — 22 — Apria Healthcare $138.50 23 Associated Emergency Physicians $1,142.00 Falck Northwest $2,582.80 24 Kaiser Permanente $12,115.34 1 Matrix Anesthesia $2,550.00 Overlake Hospital Medical Center $76,784.71 2 Radia, Inc. $255.60 TriMed Ambulance $1,035.20 3 Valley Medical Center $8,180.30 Vantage Radiology $118.70 4 Total $104.903.15 5 Id. at 2. 6 As for the reasonableness of these medical expenses, Dr. Spanier stated that: (1) he has 7 experience evaluating the reasonableness of medical expenses both as an expert witness, having 8 worked on “hundreds of cases,” and as a Washington-based physician over the last twenty years 9 for his patients; (2) it is his medical opinion that the charges Plaintiff incurred for her injury10 related symptoms and diagnoses were “causally related to [her slip and fall] on a more probable 11 than not basis” and were “within the standard of care for such injuries and diagnoses” in 12 Washington; and (3) based on his review of her medical expenses, he opined that the 13 summarized expenses, totaling $104,903.15, represented reasonable charges for necessary 14 medical treatment Plaintiff received related to her fall. Id. at 2, 21. 15 C. Procedural History 16 This action was originally filed in state court, and Home Depot removed to this Court 17 based on diversity jurisdiction. Dkts. ## 1, 1-1. Plaintiff brings one cause of action against 18 Home Depot: negligence. Dkt. # 1-1 at 3. Home Depot’s answer sets forth 11 affirmative 19 defenses. Dkt. # 5 at 4–5. Plaintiff now moves for partial summary judgment on: (1) each 20 element of her negligence claim; (2) the permanence of her injuries; (3) the necessity of her 21 medical treatment and the reasonableness of her medical expenses; and (4) Home Depot’s first 22 eight affirmative defenses. Dkt. # 15 at 1, 16–17. — 23 — — 24 — 1 III DISCUSSION — 2 — A. Summary Judgment Standard — 3 — Summary judgment is proper only if the evidence, when viewed in the light most — 4 — favorable to the nonmovant, shows “that there is no genuine dispute as to any material fact and — 5 — the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). See Celotex Corp. — 6 — v. Catrett, 477 U.S. 317, 322 (1986). A fact is “material” if it might affect the case’s outcome. — 7 — Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” if — 8 — there is sufficient evidence for a reasonable jury to return a verdict for the nonmovant. Id. The — 9 — movant bears the initial burden of showing that there is no genuine issue of material fact and that — 10 — they are entitled to prevail as a matter of law. Celotex, 477 U.S. at 323 . Once the movant has — 11 — met its burden, the nonmovant must show that there is a genuine issue of fact for trial. — 12 — Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 586–87 (1986). Rule 56(c) — 13 — mandates the entry of summary judgment against a party who fails to make a showing to — 14 — establish the existence of an element essential to that party’s case, and on which they will bear — 15 — the burden of proof at trial. Celotex, 477 U.S. at 322–23. There is no issue for trial unless there — 16 — is sufficient evidence favoring the nonmovant. Anderson, 477 U.S. at 249 . Courts must “view — 17 — the facts and draw reasonable inferences in the light most favorable to the [nonmovant].” Scott — 18 — v. Harris, 550 U.S. 372, 378 (2007). — 19 — B. Negligence — 20 — The parties do not dispute that Washington law governs this diversity action.2 In — 21 — Washington, “[a] cause of action for negligence requires the plaintiff to establish (1) the — 22 — 23 2 “Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural rules.” Cuprite Mine Partners LLC v. Anderson, 809 F.3d 548, 554 (9th Cir. 2015). 24 This Court applies Washington law as it believes the Washington State Supreme Court would apply it. 1 existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause 2 between the breach and the injury.” Johnson v. Liquor & Cannabis Bd., 197 Wash. 2d 605 , 611, — 3 — 486 P.3d 125 (2021) (quoting Tincani v. Inland Empire Zoological Soc’y, 124 Wash. 2d 121 , 4 127–28, 875 P.2d 621 (1994)). “Negligence is generally a question of fact for the jury, and 5 should be decided as a matter of law only ‘in the clearest of cases and when reasonable minds 6 could not have differed in their interpretation’ of the facts.” Bodin v. City of Stanwood, 130 7 Wash. 2d 726, 741 , 927 P.2d 240 (1996) (quoting Young v. Caravan Corp., 99 Wash. 2d 655 , 8 661, 663 P.2d 834 (1983)). Home Depot contends there are genuine issues of material fact as to 9 whether Home Depot breached its duty and whether this breach was a proximate cause of 10 Plaintiff’s injuries. Dkt. # 16 at 12. 11 1. Duty 12 “Existence of a duty is a question of law.” Vargas v. Inland Washington, LLC, 194 13 Wash. 2d 720, 730 , 452 P.3d 1205 (2019) (quoting Hertog v. City of Seattle, 138 Wash. 2d 265 , 14 275, 979 P.2d 400 (1999)). According to premises liability theory, “the duty of care landowners 15 owe to persons entering upon their land is governed by whether the person is a trespasser, a 16 licensee, or an invitee.” Van Dinter v. City of Kennewick, 121 Wash. 2d 38, 41 , 846 P.2d 522 17 (1993). The parties do not dispute Plaintiff’s status as a business invitee while she was shopping 18 at the Home Depot store. Dkt. # 15 at 10–11; Dkt. # 16 at 12. A business invitee is “a person 19 who is invited to enter or remain on land for a purpose directly or indirectly connected with 20 business dealings with the possessor of the land.” Restatement (Second) of Torts § 332 (Am. L. 21 Inst. 1965). See id. cmt. a (business invitees include “customers in shops”); see also Beebe v. — 22 — — 23 — See Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219 , 1222 (9th Cir. 2003). Without case law from the state’s high court, the Court determines how Washington’s high court would rule using 24 intermediate appellate court decisions. Id. 1 Moses, 113 Wash. App. 464, 467 , 54 P.3d 188 (2002) (“Washington has adopted the definition 2 of an invitee in the Restatement (Second) of Torts § 332.”). 3 For invitees, the Washington Supreme Court has often applied the set of duties set forth 4 in the Restatement (Second) of Torts § 343: 5 A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he 6 (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and 7 (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and 8 (c) fails to exercise reasonable care to protect them against the danger. 9 Johnson, 197 Wash. 2d at 612 (quoting Restatement (Second) of Torts § 343). See, e.g., Tincani, 10 124 Wash. 2d at 138–39 (landowners owe invitees the set of duties stated in Restatement 11 (Second) of Torts § 343); Wiltse v. Albertson’s Inc., 116 Wash. 2d 452 , 457–58, 805 P.2d 793 12 (1991) (same). An invitee “is . . . entitled to expect that the possessor will exercise reasonable 13 care to make the land safe for [their] entry.” Restatement (Second) of Torts § 343, cmt. b. 14 Ergo, Home Depot owed Plaintiff a duty to exercise reasonable care to protect Plaintiff 15 from an unreasonable risk of harm, subject to the elements set out in Section 343 of the 16 Restatement of Torts. The parties do not dispute this. Dkt. # 15 at 10–11; Dkt. # 16 at 12–15. 17 2. Breach 18 Breach is generally an issue for the trier of fact, but courts may resolve the question of a 19 defendant’s breach as a matter of law “if reasonable minds could not differ.” Vargas, 194 Wash. 20 2d at 730 (quoting Hertog, 138 Wash. 2d at 275 ). 21 First, in viewing the evidence in the light most favorable to Home Depot, Plaintiff has not 22 established that the presence of bird droppings in the garden center presented an unreasonable 23 risk of harm. “Determining whether an unreasonably dangerous condition existed is not 24 automatic. This is especially true in slip and fall cases.” Johnson, 197 Wash. 2d at 619. “It is 1 well established in the decisional law of this state that something more than a slip and a fall is 2 required to establish . . . the existence of a dangerous condition.” Id. (quoting Brant v. Mkt. 3 Basket Stores, Inc., 72 Wash. 2d 446, 448 , 433 P.2d 863 (1967)). See id. (explaining that a 4 plaintiff may not establish the existence of a dangerous condition by proving that they slipped 5 and fell on a wet floor). 6 Plaintiff submits evidence that bird droppings were present in the aisle where Plaintiff 7 fell. There is no evidence on when the bird droppings appeared, whether they were wet, or how 8 slippery bird droppings (wet or dry) are in general. Plaintiff relies on Mr. Dixon’s opinion that 9 “[t]he accumulation of bird droppings on the walkway created a hazardous condition.” Dkt. # 10 15-4 at 11. But Mr. Dixon did not “perform an inspection to measure the slip resistance of the 11 walkway when contaminated as it was at the time of Ms. Woessner’s fall.” Id. at 12. Viewing 12 the evidence and reasonable inferences therefrom in the light most favorable to Home Depot, 13 Plaintiff does not establish breach as a matter of law. 14 Second, there is an issue of material fact as to whether Home Depot failed to exercise 15 reasonable care to protect Plaintiff from any danger posed by bird droppings. Reasonable care 16 requires landowners to inspect for dangerous conditions, “followed by such repair, safeguards, or 17 warning as may be reasonably necessary for [an invitee’s] protection under the circumstances.” 18 Restatement (Second) of Torts § 343, cmt. b. Plaintiff testified that she does not remember 19 seeing warning signs inside the garden center. Dkt. # 15-1 at 44. But Klavuhn, the assistant 20 operations manager, stated that there were such signs. See Dkt. # 15-1 at 148 (there were 21 permanent warning signs “on the post next to where [Plaintiff] fell”). Home Depot had also 22 issued policies in its stores for eliminating slip hazards. See Dkt. # 15-1 at 153–56 (daily safety 23 inspections); see also supra Section II (describing employee training and practices to “isolate 24 and correct” slip hazards). As for Home Depot’s attempts to “repair” the dangerous condition, 1 Restatement (Second) of Torts § 343, cmt. b., it employed a variety of bird mitigation techniques 2 before Plaintiff’s fall. See Dkt. # 17 at 2 (describing the 13 work orders submitted in 2020 about 3 the presence of birds in the garden center). Again, viewing the evidence and reasonable 4 inferences therefrom in the light most favorable to Defendant, there is an issue of fact as to 5 whether Home Depot breached its duty of care. Thus, the Court denies Plaintiff’s motion on the 6 element of breach. 7 3. Proximate cause 8 Proximate cause consists of cause in fact and legal cause. N.L. v. Bethel Sch. Dist., 186 9 Wash. 2d 422, 437 , 378 P.3d 162 (2016). “Cause in fact refers to the ‘but for’ consequences of 10 an act—the physical connection between an act and an injury.” Id. (quoting Hartley v. State, 103 11 Wash. 2d 768 , 778, 698 P.2d 77 (1985)). Legal cause “is grounded in policy determinations as 12 to how far the consequences of a defendant’s acts should extend.” Crowe v. Gaston, 134 Wash. 13 2d 509, 518, 951 P.2d 1118 (1998). 14 Cause in fact “is normally a question for the jury.” N.L., 186 Wash. 2d at 437 . See, e.g., 15 Behla v. R.J. Jung, LLC, 11 Wash. App. 2d 329 , 347–48, 453 P.3d 729 (2019) (reversing 16 summary judgment dismissal of negligence suit because question of cause in fact was for the 17 jury); Shah v. Allstate Ins. Co., 130 Wash. App. 74, 81 , 121 P.3d 1204 (2005) (reversing 18 erroneous dismissal of negligence claim because proximate cause question was for the jury). 19 Courts “may decide cause in fact as a matter of law . . . if the facts and inferences from them are 20 plain and not subject to reasonable doubt or difference of opinion.” Behla, 11 Wash. App. 2d at 21 347. See Beard v. Mighty Lift, Inc., 224 F. Supp. 3d 1131, 1136 (W.D. Wash. 2016) (noting that 22 Washington courts “may determine proximate cause on summary judgment if reasonable minds 23 could reach only one conclusion”). — 24 — 1 Here, an issue of material fact exists as to cause in fact. In viewing the evidence and 2 reasonable inferences therefrom in the light most favorable to Home Depot, there is a question as 3 to what caused Plaintiff to fall. At her deposition, Plaintiff stated that she did not know what 4 caused her to fall. Dkt. # 15-1 at 48. Lisa assumed that Plaintiff slipped on bird droppings 5 because once she fell, Lisa saw bird droppings under Plaintiff and on her clothing and hands. 6 Dkt. # 15-2 at 2. Home Depot points to a photograph identified in Plaintiff’s discovery 7 disclosures showing the bottoms of the shoes Plaintiff was wearing when she fell. Dkt. # 16 at 8 18. Home Depot contends that the photo shows “a significant amount of what could be 9 classified as dirt or mud” on the bottoms of her shoes, and that it is “just as likely that [Plaintiff] 10 tripped and fell on dirt [or] mud as it is that she tripped on bird droppings.” Id. Viewing this 11 evidence and reasonable inferences therefrom in the light most favorable to Home Depot, an 12 issue of facts exists as to cause in fact. Thus, the Court denies Plaintiff’s motion on the element 13 of proximate cause. See Behla, 11 Wash. App. at 347 (explaining that “[c]ause in fact usually 14 presents a question for the trier of fact and is generally not susceptible to summary judgment”). 15 4. Injury 16 Because Home Depot concedes that “Plaintiff’s resulting injuries were caused by her 17 fall” and that “the medical treatment Plaintiff received thereafter was related,” the Court grants 18 Plaintiff’s motion on the injury element. Dkt. # 16 at 8. 19 C. Damages 20 Plaintiff seeks an order establishing that (1) her injuries are permanent, and (2) that her 21 medical treatment was necessary, and her medical expenses were reasonable. Dkt. # 15 at 1. — 22 — — 23 — — 24 — 1 1. Permanence of injuries 2 In Washington, a plaintiff may recover for future medical expenses reasonably certain to 3 be incurred. Erdman v. Lower Yakima Valley, Washington Lodge No. 2112 of B.P.O.E., 41 4 Wash. App. 197, 208 , 704 P.2d 150 (1985). 5 Plaintiff says that Home Depot does not contest her claim as to the permanence of her 6 injuries. Dkt. # 15 at 20. But Home Depot does dispute that Plaintiff’s injuries are permanent. 7 See Dkt. # 16 at 8. 8 Also, Plaintiff fails to meet her burden at summary judgment in showing that any of her 9 injuries are permanent. Celotex, 477 U.S. at 323 . First, Plaintiff fails to specify which injuries 10 are permanent. See Dkt. # 15 at 20. In his report, Dr. Spanier did not state that all of Plaintiff’s 11 injuries are permanent. See Dkt. 15-3 at 12–20. He identified that Plaintiff reports intermittent 12 pain in her right hip, right knee, and left wrist, and he described how Plaintiff mitigates her 13 symptoms. Id. at 16. As for Plaintiff’s left wrist, Dr. Spanier opined: “I anticipate she will have 14 ongoing symptoms in the left wrist for the rest of her life.” Id. at 20. He does not explain which 15 symptoms he anticipates will endure, nor whether his medical opinion is that Plaintiff has a 16 permanent wrist injury on a more probable than not basis. See id. Based on Plaintiff’s evidence, 17 the Court cannot conclude that any of her injuries are permanent as a matter of law. The Court 18 therefore denies Plaintiff’s motion as to the permanence of her injuries. 19 2. Medical treatment and expenses 20 In Washington, a plaintiff may recover only reasonable medical expenses based on 21 necessary medical treatment. See Palmer v. Jensen, 132 Wash. 2d 193, 199 , 937 P.2d 597 22 (1997). The plaintiff bears the burden of proving their medical treatment was necessary and the 23 expenses incurred were reasonable. Patterson v. Horton, 84 Wash. App. 531, 543 , 929 P.2d 24 1125 (1997). See Hansen v. Rothaus, 107 Wash. 2d 468, 477 , 730 P.2d 662 (1986) (“It is not 1 enough that the medical bills be paid, the amounts must be reasonable.”). Medical bills can be 2 offered as proof of past medical expenses, but they are not sufficient on their own to establish 3 that such care was reasonable and necessary. Patterson, 84 Wash. App. at 543 . Additional 4 evidence about the reasonableness of medical costs “may come from any witness who evidences 5 sufficient knowledge and experience respecting the type of service rendered and the reasonable 6 value thereof.” Kennedy v. Monroe, 15 Wash. App. 39, 49 , 547 P.2d 899 (1976). If a plaintiff 7 presents enough evidence establishing the reasonableness and necessity of their medical 8 treatment and expenses, and the defendant submits “no evidence to call the treatment into 9 question,” the reasonableness and necessity of the plaintiff’s medical care are not a matter of 10 legitimate dispute. Palmer, 132 Wash. 2d at 199–201. See Ide v. Stoltenow, 47 Wash. 2d 847 , 11 851, 289 P.2d 1007 (1955) (explaining that for medical expenses, the trial court may “accept as 12 established” damages that are “conceded,” “undisputed, and beyond legitimate controversy”). 13 Plaintiff has submitted evidence that Dr. Spanier has familiarity with and understanding 14 of the medical treatment provided to Plaintiff, as well as the expenses incurred because of her 15 care. Dr. Spanier opined that her medical treatment was “medically necessary” and “causally 16 related to the subject fall on a more probable than not basis.” Dkt. # 15-3 at 19. He also opined 17 that the medical expenses were reasonable: “[I]t is my medical opinion that the charges 18 [Plaintiff] incurred for the related treatments are reasonable and fall well within the standard of 19 care for such injuries and diagnoses in our community and the state of Washington.” Id. at 2. 20 In its response, Home Depot submits no evidence and provides no argument on the 21 necessity and reasonableness of Plaintiff’s medical care. As there is no dispute about Plaintiff’s 22 necessary treatment and reasonable expenses, the Court grants Plaintiff’s motion on the necessity 23 and reasonableness of Plaintiff’s medical care. — 24 — 1 D. Affirmative Defenses 2 Plaintiff contends that Home Depot’s first eight affirmative defenses lack merit as a 3 matter of law. Dkt. # 15 at 16–18. Home Depot does not oppose Plaintiff’s motion as to 4 affirmative defenses 1, 2, and 7. Dkt. # 16 at 19. The Court therefore addresses only affirmative 5 defenses 3, 4, 5, 6, and 8. Home Depot bears the burden of establishing its affirmative defenses. 6 See Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir. 1981) (“[T]he burden is always on the party 7 advancing an affirmative defense to establish its validity.”). Because Home Depot bears the 8 burden of proof on its affirmative defenses, Plaintiff can meet her burden at summary judgment 9 by “pointing out . . . that there is an absence of evidence to support the nonmoving party’s case.” 10 Celotex, 477 U.S. at 325. 11 1. Affirmative defenses 3, 4: Rule 19 joinder and superseding or intervening causes 12 Home Depot’s third affirmative defense states: “Plaintiff may have failed to join a 13 necessary party under Fed. R. Civ. P. 19.” Dkt. # 5 at 4. Home Depot’s fourth affirmative 14 defense says: “The action should be dismissed to the extent Plaintiff’s alleged damages, if any, 15 resulted from superseding intervening acts or omissions of other persons and/or entities over 16 which Home Depot had no responsibility or control.” Id. Home Depot mentions neither 17 affirmative defense in its response. See Dkt. # 16 at 19–22. 18 A party waives or abandons an argument at the summary judgment stage if it provides no 19 argument in support of its position. See, e.g., John-Charles v. California, 646 F.3d 1243 , 1247 20 n.4 (9th Cir. 2011) (a party “failed to develop any argument on this front, and thus has waived 21 it”); United States v. George, 291 F. App’x 803, 805 (9th Cir. 2008) (a party’s “failure to 22 adequately develop . . . arguments in [their] brief operates as a waiver”); United States v. Kimble, — 23 — 107 F.3d 712 , 715 n.2 (9th Cir. 1997) (holding an argument “to have been abandoned” when the — 24 — 1 party failed to “coherently develop[ ]” it in their briefs). Home Depot has waived its third and 2 fourth affirmative defenses. 3 2. Affirmative defense 5: Contributory negligence 4 Home Depot’s fifth affirmative defenses states: “Plaintiff’s action should be dismissed 5 because Plaintiff’s alleged damages may have resulted from alleged acts or omissions by other 6 persons and entities for which Home Depot had no responsibility or control, including Plaintiff, 7 and fault should be apportioned accordingly.” Dkt. # 5 at 4. For this affirmative defense, Home 8 Depot suggests that Plaintiff’s own negligence contributed to her fall. See Dkt. # 16 at 19–20. 9 Under Washington’s contributory fault regime, “any contributory fault chargeable 10 to the claimant diminishes proportionately the amount of compensatory damages for an 11 injury attributable to the claimant’s contributory fault.” Revised Code of Washington — 12 — (RCW) 4.22.005. Contributory negligence3 and failure to mitigate damages are theories 13 of contributory fault. RCW 4.22.015 (defining “fault” as “acts or omissions . . . that are 14 in any measure negligent or reckless toward the person or property of the actor or others,” 15 including an “unreasonable failure to avoid an injury or to mitigate damages”). See 16 Jaeger v. Cleaver Const., Inc., 148 Wash. App. 698 , 712–13, 201 P.3d 1028 (2009) 17 (“Two theories of contributory fault are at issue: (1) that the [plaintiffs] negligently 18 caused their own damages and (2) that the [plaintiffs] failed to mitigate those damages.”). 19 In evaluating a plaintiff’s contributory negligence, “the inquiry is whether or not 20 [the plaintiff] exercised that reasonable care for [their] own safety which a reasonable — 21 — — 22 — 3 While Home Depot refers to “comparative negligence” and “comparative fault” in its response, see Dkt. # 16 at 9–10, 20, 23, these concepts are more correctly termed “contributory negligence” and “contributory fault.” See David DeWolf & Keller Allen, Washington Practice: Tort Law and Practice § — 23 — 9.2 (5th ed.) (explaining that the Washington legislature replaced the former “comparative negligence” statute with the “contributory fault” statute, see RCW 4.22.005, in 1981, and that contributory negligence 24 is one aspect of contributory fault). 1 [person] would have used under the existing facts and circumstances, and, if not, was 2 [their] conduct a legally contributing cause of [their] injury.” Dunnington v. Virginia 3 Mason Med. Ctr., 187 Wash. 2d 629 , 637–38, 389 P.3d 498 (2017) (internal quotations 4 and citation omitted). Whether there has been contributory negligence “is a jury question 5 unless the facts are such that all reasonable persons must draw the same conclusion from 6 them, in which event the question is one of law for the courts.” Hough v. Ballard, 108 7 Wash. App. 272, 279 , 31 P.3d 6 (2001). 8 There is an issue of fact as to contributory negligence. In viewing the evidence 9 and reasonable inference therefrom in the light most favorable to Home Depot, a jury 10 could reasonably conclude that Plaintiff failed to exercise reasonable care for at least two 11 reasons. First, there is an issue as to whether Plaintiff , in the exercise of reasonable care, 12 should have paid sufficient attention to her surroundings to see the warning signs in the 13 garden center that Home Depot contends were posted at the time of her fall. See Case v. 14 Peterson, 17 Wash. 2d 523, 528 , 136 P.2d 192 (1943) (“The only evidence in the record 15 which the jury had to consider as bearing on the question of contributory negligence was 16 that warning signs were hanging on the wire at certain places, and that the respondent 17 either saw or, by the exercise of ordinary care, should have seen them and avoided the 18 wire.”). Second, there is an issue as to whether Plaintiff, in the exercise of reasonable 19 care, should have noticed the bird droppings on the ground when first walking down the 20 aisle and then avoided them from that point forward. The Court thus denies Plaintiff’s 21 motion as to Home Depot’s fifth affirmative defense concerning Plaintiff’s contributory 22 negligence. — 23 — — 24 — 1 3. Affirmative defense 6: Failure to mitigate damages 2 Home Depot’s sixth affirmative defense states: “Plaintiff may have failed to mitigate her 3 damages.” Dkt. # 5 at 4. In support of this affirmative defense, Home Depot says that Plaintiff 4 declined to seek more treatment at her final medical appointment. Dkt. # 16 at 22. The evidence 5 Home Depot offers is a declaration drafted by its attorney stating: “I have reviewed Plaintiff’s 6 medical records relating to the subject incident, including that from her July 12, 2021 visit to 7 Alison Chromy, PA-C. Plaintiff declined to pursue any additional treatment.” Dkt. # 17 at 3. 8 The doctrine of mitigation of damages prevents an injured party from recovering 9 damages that could have been avoided if the injured party had taken reasonable efforts after 10 sustaining their injuries. Cobb v. Snohomish Cnty., 86 Wash. App. 223, 230 , 935 P.2d 1384 11 (1997); Bernsen v. Big Bend Elec. Coop., 68 Wash. App. 427, 433 , 842 P.2d 1047 (1993). “A 12 person who has been injured by another’s wrongdoing is given wide latitude and is only required 13 to act reasonably in mitigating her damages.” TransAlta Centralia Generation LLC v. Sicklesteel 14 Cranes, Inc., 134 Wash. App. 819, 826 , 142 P.3d 209 (2006). 15 Plaintiff requests compensation for future “physical pain and suffering,” “loss of 16 enjoyment of life,” and “permanenc[e] of injury.” Dkt. # 1-1 at 4. But Home Depot submits no 17 evidence that Plaintiff’s alleged decision not to pursue additional treatment affects her future 18 physical pain and suffering, loss of enjoyment of life, and permanence of injuries. Home Depot 19 also offers no context surrounding Plaintiff’s decision to forego treatment, such as whether future 20 medical care would improve any of her injuries. See Cox v. Keg Restaurants U.S., Inc., 86 21 Wash. App. 239 , 244, 935 P.2d 1377 (1997) (holding that “it is not unreasonable for a plaintiff to 22 refuse treatment that offers only a possibility of relief”). Plaintiff need only “act reasonably in 23 mitigating her damages,” and Home Depot has not offered evidence that her decision was 24 unreasonable. TransAlta, 134 Wash. App. at 826 . Home Depot does not raise a genuine issue of 1 material fact as to Plaintiff’s failure to mitigate damages. The Court therefore grants Plaintiff’s 2 motion as to Home Depot’s sixth affirmative defense. 3 4. Affirmative defense 8: Actions or negligence of nonparties 4 Home Depot’s eighth affirmative defenses states: “Plaintiff’s injuries or damages, if any, 5 may have been proximately caused in whole or in part by the actions and/or negligence of other 6 non-parties, other third-parties, and/or unknown or unnamed persons or entities.” Dkt. # 5 at 4. 7 Home Depot contends that the jury should be able to reduce Home Depot’s percentage of fault 8 based on Superior’s actions or negligence. See Dkt. # 16 at 20–21. Home Depot relies on 9 evidence that it hired Superior to help eliminate the presence of birds. See Dkt. # 17 at 2 10 (describing Home Depot’s work orders from 2020). But Home Depot presents no evidence that 11 Superior’s actions or negligence contributed to Plaintiff’s injuries. Because there is insufficient 12 evidence, the Court grants Plaintiff’s motion as to Home Depot’s eighth affirmative defense. See 13 Celotex, 477 U.S. at 325 (plaintiffs can meet their burden at summary judgment by “pointing out 14 . . . that there is an absence of evidence to support the nonmoving party’s case”). 15 IV CONCLUSION — 16 — Based on the above, the Court ORDERS as follows: — 17 — 1. The Court GRANTS in part and DENIES in part Plaintiff’s motion for partial — 18 — summary judgment. Dkt. # 15. — 19 — 2. For the negligence claim, the Court GRANTS Plaintiff’s motion as to the duty — 20 — and injury elements. — 21 — 3. For the negligence claim, the Court DENIES Plaintiff’s motion as to the breach — 22 — and proximate cause elements. — 23 — 4. The Court DENIES Plaintiff’s motion as to the permanence of Plaintiff’s injuries. — 24 — 1 5. The Court GRANTS Plaintiff's motion as to the necessity of Plaintiff's medical 2 || treatment and the reasonableness of her medical expenses. The medical treatment Dr. Spanier 3 || identified was necessary, and the $104,903.15 of medical expenses Plaintiff incurred were 4 reasonable. See Dkt. # 15-3 at 2, 8. 5 6. The Court GRANTS Plaintiff's motion on Home Depot’s affirmative defenses 1, 6 2, 3, 4, 6, 7, and 8. The Court STRIKES these seven affirmative defenses. 7 7. The Court DENIES Plaintiff's motion on Home Depot’s fifth affirmative defense. 8 Dated this 5th day of May, 2023. ° Cok 4, Chur 10 John H. Chun United States District Judge — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL