Justin Price v. Dick's Sporting Goods, Inc.

[3] 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA [6] JUSTIN PRICE, Case No. 3:24-cv-05585-TLF 7 Plaintiff, v. ORDER GRANTING DEFENDANT 8 DICK’S SPORTING GOODS, DICK'S SPORTING GOODS INC, et al. INC.’S MOTION FOR SUMMARY 9 JUDGMENT Defendants. [10] 11 This matter comes before the Court on defendant Dick's Sporting Goods, Inc.’s 12 (“defendant”) Motion for Summary Judgment. Dkt. 29. 13 The parties have consented to the jurisdiction of a Magistrate Judge. Dkt. 11.1 14 Considering each party’s briefs, the oral argument, and the record, the Court 15 GRANTS defendant’s motion for summary judgment. Plaintiff Justin Price (“plaintiff”) 16 has not presented evidence creating a genuine dispute of material fact, and he has not 17 met his burden under Washington law to establish negligence. 18 I. Factual Background 19 This case was removed from the Pierce County Superior Court based on 20 diversity of citizenship. Dkt. 1. The dispute arises from an incident that occurred on 21 October 10, 2021 at the Dick’s Sporting Goods in the Tacoma Mall in Tacoma, Pierce [22] 1 During oral argument, the Court asked counsel for plaintiff whether plaintiff was requesting to remove 23 the Doe defendant, and Counsel stated that yes, the plaintiff confirmed the Doe defendant was no longer to be included in the caption as a potential party in this case. Dkt. 53. The Clerk of Court is directed to 24 remove the Doe defendant from the caption. 1 County, Washington. Dkt. 1-3, Complaint. Plaintiff entered defendant’s store to buy 2 “[t]ents and some tent weights.” Dkt. 25, Declaration of Sarah Tuthill-Kveton (“Tuthill3 Kveton Decl.”), Ex. A, Deposition of Justin Price at 39:24. After going up the escalator, 4 plaintiff picked up two pop-up tent canopies and accompanying weights Id. at 42:16-26. 5 Plaintiff testified the merchandise was too heavy to carry alone, so he requested 6 assistance from a store employee. Id. 7 A store employee, later identified as Bailey Smith, assisted plaintiff with getting 8 the tents and weights downstairs, and proceeded to carry the 80-pound weights down 9 the escalator. Id. at 43:2-10; Dkt. 25. Declaration of Sara L. Lee (“Lee Decl.”), Exhibit H, 10 Defendant’s Response to Plaintiff’s Rog. No. 9. Plaintiff followed behind Smith, carrying 11 the two tents. Tuthill-Kveton Decl., Ex A at 43:8-10. As he got on the escalator, he sat 12 the tents on the escalator’s stairs, and lost grip on one of them because it was “kicked 13 out” of his hands due to the movement of the stairs. Id. at 53:9-25. He claims “the 14 manager caught it with his foot,” but then it slipped and slid to the bottom of the 15 escalator. Id. at 43:10-15. Video footage shows the employee was already at the bottom 16 of the escalator when the pop-up tent slid down behind him. Tuthill-Kveton Decl., Ex. B, 17 Video. Bailey Smith stated in his deposition that he was already at the bottom of the 18 escalator. Id., Ex. C, Deposition of Bailey Smith at 12:24-25, 13:1-6. 19 After the tent reached the bottom, the escalator “instantly” and “unexpectedly” 20 came to an “abrupt” stop. Dkt. 1-3 at 3. It stopped after the tent pole hit the bottom comb 21 plate, a safety feature built into the escalator. Dkt. 31, Declaration of Eddie Recardo 22 (“Recardo Decl.”) ¶¶ 6-7. Plaintiff testified it stopped “violently,” causing him to twist his [24] 1 knee. Id. at 43:17-22. Plaintiff continued to walk to the cash registers to buy the tents. 2 Id. at 54:7-14. 3 II. Summary Judgment Legal Standard 4 Summary judgment is proper if “there is no genuine dispute as to any material 5 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 6 fact is material if it “might affect the outcome of the suit,” and a dispute of fact is genuine 7 if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 8 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 9 Once a motion for summary judgment is properly made and supported, the 10 opposing party “must come forward with specific facts showing that there is a genuine 11 issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 587 12 (1986) (quotation marks omitted). The Court then views the facts in the light most 13 favorable to the nonmoving party and resolves any ambiguity in that party's favor. See 14 Bator v. Hawaii, 39 F.3d 1021, 1026 (9th Cir. 1994). 15 Ultimately, summary judgment is appropriate against a party who “fails to make a 16 showing sufficient to establish the existence of an element essential to that party's case, 17 and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, [18] 477 U.S. 317, 322 (1986). Under the Erie doctrine, federal courts sitting in diversity 19 apply state substantive law and federal procedural law. Erie R.R. Co. V. Tompkins, 304 20 U.S. 64 , 58 (1938). [24] 1 III. Discussion 2 A. Plaintiff’s Untimely Response 3 Defendant timely filed its Motion for Summary Judgment on October 23, 2025 4 and argues plaintiff’s untimely response constitutes a violation of the local rules related 5 to timing and warrants a striking of the response in its entirety. Dkt. 50 at 2. 6 Local Rules are “law of the United States.” United States v. Hvass, 355 U.S. 7 570 , 575–76 (1958). Attorneys practicing in this district are required to comply with 8 them. A party may not ignore filing deadlines and anticipate the Court would consider 9 late submissions. 10 Under the U.S. District Court for the Western District of Washington’s Local Civil 11 Rules (LCR), motions for summary judgment must be noted for consideration no earlier 12 than 28 days after filing, and any opposition must be filed and received no later than 21 13 days after the filing date of the motion. LCR 7(d)(3). Replies are due no later than 28 14 days after filing. Id. 15 Plaintiff’s opposition was due on November 13, 2025. Plaintiff did not comply with 16 that deadline, and defendant re-noted the motion to December 5, 2025. Dkt. 35. The re17 noting had no effect on the response deadline imposed by the Local Civil Rules. 18 Plaintiff’s current counsel made an appearance on November 7, 2025; his former 19 counsel withdrew on December 1, 2025. Dkt. 33, 34. Yet, plaintiff did not submit any 20 response until December 17, 2025 -- more than thirty days after the deadline mandated 21 by the rules. Dkt. 38. On December 18, 2025, the Court issued an Order to Show Cause 22 regarding the missed deadline. Dkt. 43. [24] 1 Federal Rule of Civil Procedure 6(b)(1)(B) permits extension of a deadline after 2 its expiration only upon a showing of “excusable neglect.” Plaintiff did not make a timely 3 motion to extend the deadline and has not made that showing. In response to the 4 Court’s Order to Show Cause, plaintiff’s counsel contends the delay resulted from 5 difficulty obtaining files from former counsel and concern about disclosing sensitive 6 information. Dkt. 46. These explanations do not constitute excusable neglect. 7 Plaintiff could have moved for an extension of the deadline under Fed. R. Civ. P. 8 6 (b)(1)(A), or otherwise alerted the Court that additional time was necessary. And his 9 attorney also failed to communicate with defense counsel. See LCR 7(j) (emergency 10 procedure for relief from deadlines). Accordingly, the Court will not consider the brief. 11 The Court considers the attached exhibits, because they are evidence that would be 12 relevant to the Court’s summary judgment review, but the Court declines to consider 13 plaintiff’s response brief.2 [14] B. Alternative Analysis [15] Even if the Court disregards plaintiff’s brief, the Court may review Rule 56(d) and [16] spoliation concerns as they are considered as part of the Court’s summary judgment [17] analysis; the issues are meritless. [18] a. Continuance Under Rule 56 [19] A party seeking Rule 56(d) relief bears the burden of demonstrating, in affidavit [20] or declaration, (1) the specific facts it hopes to elicit from further discovery; (2) the facts [22] 2The Court is not granting summary judgment as a sanction for plaintiff’s late filing. A motion for summary 23 judgment may be granted only if the movant independently demonstrates the absence of a genuine dispute of material fact, not as a sanction for the violation of local rules. Henry v. Gill Indus., Inc., 983 24 F.2d 943 , 950 (9th Cir. 1993); Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995). 1 sought exist; and (3) the sought-after facts are essential to oppose summary judgment. 2 Fam. Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th 3 Cir. 2008) (citing State of Cal. ex rel. Cal. Dep't of Toxic Substances Control v. 4 Campbell, 138 F.3d 772, 779 (9th Cir. 1998)); see also Tatum v. City & Cnty. of San 5 Francisco, 441 F.3d 1090 , 1100 (9th Cir. 2006) (“A party requesting a continuance 6 pursuant to Rule 56([d]) must identify by affidavit [or declaration] the specific facts that 7 further discovery would reveal and explain why those facts would preclude summary 8 judgment.”). Failure to comply with these requirements is a proper basis for denying 9 relief. Tatum, 441 F.3d at 1101. 10 Plaintiff did not file a Rule 56(d) motion or submit the required affidavit or 11 declaration. Plaintiff did not identify what specific facts the sought-after discovery would 12 reveal or how those facts would create a genuine issue of material fact sufficient to 13 defeat summary judgment. Discovery was originally to be completed by May 15, 2025 14 (Dkt. 19), but the Court extended the deadline to December 1, 2025. Dkt. 27. A lack of 15 diligence in conducting discovery is grounds for denying a Rule 56(d) request. 16 Panatronic USA v. AT&T, 287 F.3d 840, 846 (9th Cir. 2002). Plaintiff has not 17 established diligence or met any of the prerequisites for relief under Rule 56(d). The 18 Court therefore declines to stay this motion pending further discovery or offer any other 19 relief under the Rule. Accordingly, even if considered, plaintiff’s Rule 56(d) request 20 would be denied. 21 b. Spoliation 22 Fed. R. Civ. P. 37(e) authorizes sanctions only where electronically stored 23 information that should have been preserved is lost because a party failed to take [24] 1 reasonable steps to preserve it, and the information cannot be restored or replaced. 2 Plaintiff offers no evidence that any additional surveillance footage ever existed, or that 3 any footage was destroyed after a duty to preserve arose or with intent to deprive. To 4 the contrary, the record shows defendant produced the footage that exists. Dkt. 40, Lee 5 Decl., Ex. I, Supplemental Response to Plaintiff’s Rog. No. 6. 6 Rule 37(e) does not apply to information lost before any duty to preserve 7 attached, and routine destruction in the normal course of business does not constitute 8 spoliation absent notice of relevance. See Mork v. Russell, 2023 WL 7545518 , at *2 (D. 9 Nev. Nov. 14, 2023); United States v. $40,955.00 in U.S. Currency, 554 F.3d 752 , 758 10 (9th Cir. 2009) 11 The incident occurred in October 2021 and the complaint was not filed until June 12 2024. Dkt. 1-3. Plaintiff presents no evidence of destruction, no evidence of notice, and 13 no evidence of intent to deprive. Absent such proof, plaintiff cannot satisfy any element 14 necessary for spoliation sanctions. Thus, plaintiff’s spoliation argument would fail even if 15 it were properly before the Court. 16 C. Negligence Under Washington Law 17 To prevail on a negligence claim under Washington law, a plaintiff must 18 establish: (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, 19 and (4) a proximate cause between the breach and the injury. Pedroza v. Bryant, 101 20 Wn.2d 226, 228 (1984). As an escalator operator, defendant is a common carrier owing 21 a duty of the highest care for its passengers' safety compatible with the practical 22 operation of its business. Knutson v. Macy's W. Stores, Inc., 1 Wash. App. 2d 543 , 545 23 (2017); Dabroe v. Rhodes Co., 64 Wash.2d 431, 434 (1964). But, the common carrier is [24] 1 not an insurer of passenger safety, and the mere occurrence of an accident does not 2 establish negligence. Rathvon v. Columbia Pac. Airlines, 30 Wash.App. 193 , 204 3 (1981), review denied, 96 Wash.2d 1025 (1982). 4 The circumstances here closely parallel those in Tinder v. Nordstrom, Inc., in 5 which the plaintiff descended down an escalator while carrying multiple packages, the 6 escalator stopped suddenly, and no malfunction was found either before or after the 7 incident. 84 Wash. App. 787, 793-94 (1997). The court held that a sudden stop, without 8 evidence of a defect or negligent conduct, does not give rise to an inference of 9 negligence and that to hold otherwise would improperly transform the store into an 10 insurer of passenger safety. Id. at 794 . This case is even less favorable to plaintiff 11 because the stop was not unexplained — it occurred only after plaintiff dropped the 12 merchandise onto the escalator mechanism. 13 Washington courts have long held that common carriers are not liable for 14 ordinary jolts or stops incident to normal operation, and liability requires evidence of 15 conduct outside the ordinary experience from which negligence reasonably be inferred. 16 See Gentry v. Greyhound Corp., 46 Wash.2d 631 , 633–34 (1955); see also Benton v. 17 Farwest Cab Co., 63 Wash.2d 859 , 862–63 (1964); Wade v. N. Coast Transp. Co., 165 18 Wash. 418 , 420–21 (1931). Descriptions such as “violent” or “abrupt” do not, standing 19 alone, establish negligence. See Wilcoxen v. Seattle, 32 Wash.2d 734, 738 (1949). 20 These principles apply equally to escalators. Brown v. Crescent Stores, Inc., 54 Wash. 21 App. 861, (1989) (citing Edwards v. Burke, 36 Wash. 107, 112 (1904) (the same duties 22 which apply to carrying passengers vertically also apply to carrying them horizontally)). 23 In a premises liability case, plaintiff must prove that “the defendant had actual or [24] 1 constructive notice of the alleged unsafe condition.” Galassi v. Lowe's Home Centers, 2 LLC, 4 Wn.3d 425 , 428 (2025) (citing Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 3 605, 612 (2021)). Without evidence of actual or constructive notice, a plaintiff usually 4 cannot establish breach of duty.3 5 Plaintiff’s complaint broadly alleges that defendant failed to warn of, guard 6 against, or eliminate an unreasonably hazardous condition; failed to safely operate the 7 escalator; and knew or should have known of the hazardous condition. Dkt. 1-3 at 5. 8 These allegations, however, are unsupported by the evidentiary record. 9 There is no evidence of any defect, improper maintenance, or operational failure. 10 To the contrary, the record establishes that the escalator functioned exactly as designed 11 to prevent further harm once a foreign object entered the comb plate area. Dkt. 31, 12 “Recardo Decl.” ¶¶ 6-7. Asserting that defendant should have directed him to use the 13 elevator rather than the escalator pursuant to store policy is not persuasive. The policy 14 document applies only to customers with disabilities or special needs. Dkt. 41, Lee 15 Decl., Ex. B. Plaintiff does not contend (and the record does not support) that he is 16 disabled or has special needs. Plaintiff also knew that elevators were available in the 17 store. These facts defeat any claim that defendant breached a duty to warn or redirect 18 plaintiff. 19 Plaintiff fails to establish notice. The alleged “unsafe condition” arose only when 20 plaintiff dropped the tent. Defendant could not have known of or remedied that condition [21] 22 3 The “mode-of-operation” exception recognized in Pimentel v. Roundup Co., 100 Wn.2d 39, 49 (1983) is inapplicable here. Plaintiff’s counsel asserted in oral argument that defendant’s method of operation 23 created a foreseeable hazard because a store employee led plaintiff towards the escalator, and helped plaintiff use the escalator while carrying bulky merchandise. This conclusory assertion is not enough to 24 invoke the narrow Pimentel exception. 1 before it occurred, and the stoppage itself does not constitute notice of a preexisting 2 danger. As in Tinder, a post-incident inspection revealed no defect, and plaintiff offers 3 no evidence to the contrary. See also Bozzi v. Nordstrom, Inc., 186 Cal. App. 4th 755 4 (2010) (holding that department store did not breach duty to inspect or maintain 5 escalator where it stopped during external power outage, extensive inspections 6 revealed no defects, and plaintiff’s expert opinions were speculative and unsupported). 7 IV. Conclusion 8 Because plaintiff has identified no dangerous condition, breach of duty, or 9 evidence of notice, his negligence claim fails as a matter of law. Defendant’s Motion for 10 Summary Judgment is GRANTED. [11] 12 Dated this 15th day of January, 2026. [14] A [15] Theresa L. Fricke 16 United States Magistrate Judge