Griswold v. Fred Meyer Stores, Inc.

SARAH GRISWOLD, individually, Respondent, v. FRED MEYER STORES, INC., an Ohio corporation registered to do business in Washington, Appellant.

No. 81444-3-I

Court of Appeals of Washington, Division 1

August 16, 2021

UNPUBLISHED OPINION

CHUN J.

A dolly fell on Sarah Griswold's foot at a Fred Meyer store. Because of her resulting injury, Griswold sued Fred Meyer for negligence. At her deposition, Griswold testified that an employee placed a dolly on an overloaded shopping cart, moved the cart, and the dolly fell on her foot. Griswold moved for summary judgment on liability, submitting video surveillance footage of the incident. The trial court granted the motion. The matter proceeded to trial on damages. A jury rendered a $2.73 million verdict in Griswold's favor.

Fred Meyer appeals and submits an abridged and annotated version of the video surveillance footage that was not before the trial court. For the first time on appeal, it claims the video surveillance footage contradicts Griswold's testimony about the events leading to her injury, so the trial court improperly entered summary judgment in her favor. It also raises various other arguments supporting reversal of summary judgment.

Since Fred Meyer failed to raise its argument related to the video surveillance footage below, we disregard it. And we affirm the trial court's grant of summary judgment.

I. BACKGROUND

Griswold went to a Fred Meyer store. While browsing the cosmetics aisle, she stood next to a shopping cart that workers were using to restock the shelves. A Fred Meyer employee (Coral)^[1] approached the cart, placed something on it, pulled it away, and then a wooden dolly fell on Griswold's foot. Coral picked up an item that had fallen placed it back in the cart, and carried the dolly away. Griswold waited a while in the aisle for Coral to help her when she did not, Griswold went to a cashier, who called a manager about the accident. The manager filled out an accident report and gave Griswold an ice pack.

Because of the severity of the injury to her foot, Griswold sued Fred Meyer for negligence. In a deposition, she testified that out of the corner of her eye, she saw Coral approach the cart, place the dolly in the cart on top of a stack of boxes, go to the other side of the cart, and pull the cart away. She testified that once Coral pulled the cart away, the dolly fell on her foot. She testified that she did not know how the dolly was oriented on the cart, and said that it could have even been under the boxes. She testified that she never touched the cart or dolly. And at her deposition, Griswold appeared to concede that her recollection of the event was hazy:

Q: Okay. Let me ask it this way. What was it on before it fell?

A: Another cart.

Q: Was it-

A: I feel like it might have been a shopping cart, but I'm not 100 percent positive.

And:

Q: Okay. And when you got to the aisle, the cart that had the dolly on it was already there?

A: It didn't have the dolly on it when I got there. She picked it up and put it on there.

Q: Okay. Did you see her do that?

A: Yeah, I watched her-I could see out of the corner out of my eye she was picking up stuff, and that was the last thing she put on top.

Q: Okay. Where did the dolly-where did she pick it up from?

A: I don't know. I didn't see it before that. It could have been leaning against the cart or the shelf or behind the cart. I wasn't-

Q: Did she bring the dolly into the aisle with her?

A: That's possible as well.

Griswold moved for summary judgment. She submitted video surveillance footage of the incident and included stills from the video in her summary judgment motion. In response, Fred Meyer claimed that there were questions of fact as to whether Griswold was contributorily negligent. Fred Meyer did not assert that the video contradicts Griswold's testimony. Griswold said for the first time in her reply in support of summary judgment that the doctrine of res ipsa loquitur applied to her negligence claim. The trial court granted Griswold's summary judgment motion and dismissed Fred Meyer's affirmative defense of contributory negligence.

After a trial for damages, the jury returned a $2, 732, 171 verdict in Griswold's favor. Fred Meyer moved for a new trial and in the alternative for remittitur, which motions the trial court denied.

Fred Meyer now appeals. It says for the first time that the video surveillance footage of the incident contradicts Griswold's deposition testimony about the incident, so we should reverse the trial court's grant of summary judgment on liability.

II. ANALYSIS

Fred Meyer says that because the video surveillance footage contradicts Griswold's deposition testimony, we should reverse the trial court's grant of summary judgment on liability and enter judgment as a matter of law in its favor. And it says that, even without considering the video, the trial court erred in concluding as a matter of law that Fred Meyer was negligent, and that it presented a genuine issue of material fact that Griswold was contributorily negligent. We disagree on both points.

We review de novo a summary judgment. Blue Spirits Distilling, LLC v. Washington State Liquor &Cannabis Bd., 15 Wn.App. 2d 779, 785, 478 P.3d 153 (2020). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Id.; CR 56(c). In ruling on a summary judgment motion, a trial court must view the evidence and reasonable inferences from it in the light most favorable to the nonmoving party. Id. "The nonmoving party may not rely on speculation or argumentative assertions that unresolved factual issues remain." Little v. Countrywood Homes, Inc., 132 Wn.App. 777, 780, 133 P.3d 944 (2006).

A. Physical Facts Doctrine

Fred Meyer says that under the physical facts doctrine, we should disregard Griswold's deposition testimony about the placement of the dolly because the video surveillance footage contradicts it and shows that Coral did not place the dolly on the cart. It raises this issue for the first time on appeal. Fred Meyer submits abridged and annotated clips of the video in support of its claim that the video contradicts Griswold's testimony. Griswold says Fred Meyer waived any claim about the video contradicting her testimony and that it improperly submitted the video clips. Under RAP 9.12, RAP 2.5(a), and RAP 1.2(a), we decline to address this argument, which Fred Meyer has waived.

Under Washington law, "when uncontroverted physical evidence speaks with a force sufficient to overcome contrary testimony, reasonable minds cannot differ, and the physical facts must be followed." State v. Hansen, 30 Wn.App. 702, 707, 638 P.2d 108 (1981). But the physical facts rule has its limits:

This rule, however, does not apply when the physical facts in evidence go no further than to simply cast doubt upon the credibility of a witness or a party. Shephard v. Smith, 198 Wn. 395, 88 P.2d 601 (1939). On the contrary, to properly apply the rule, the physical facts in evidence must not only be undisputed, they must also be consistent with each other and, when taken together, be manifestly irreconcilable with the countervailing oral testimony. In short, the established and undisputed physical facts must be such as to [irresistibly] lead reasonable minds to but a single conclusion.

Bunnell v. Barr, 68 Wn.2d 771, 775-76, 415 P.2d 640 (1966).

Fred Meyer cites Scott v. Harris to support its physical facts theory. 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). There, the United States Supreme Court held that the lower court erred in relying on a party's assertions about his driving; video footage from a camera on a police car contradicted the assertions. Id. at 380-81. Applying Federal Rule of Civil Procedure 56(c), it held that, "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. at 380. "Washington courts treat as persuasive authority federal decisions interpreting the federal counterparts of our own court rules." Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989).

RAP 9.12

Fred Meyer says its physical facts claim does not violate RAP 9.12. The rule provides, "On review of an order granting or denying a motion for summary judgment the appellate court will consider only evidence and issues called to the attention of the trial court." RAP 9.12. "The purpose of this limitation is to effectuate the rule that the appellate court engages in the same inquiry as the trial court." Wash. Fed'n of State Emps. v. Office of Fin. Mgmt., 121 Wn.2d 152, 157, 849 P.2d 1201 (1993); see also Silverhawk, LLC v. KeyBank Nat'l Ass'n, 165 Wn.App. 258, 265-66, 268 P.3d 958 (2011) (declining to consider arguments raised on appeal that the appellant did not raise on summary judgment). Fred Meyer says that under Mithoug v. Apollo Radio of Spokane, we need not limit our review to the evidence the trial court expressly considered. 128 Wn.2d 460, 462, 909 P.2d 291 (1996). But in Mithoug, our Supreme Court recognized that, under RAP 9.12, evidence "called to the attention of the trial court" embraces more than evidence merely considered by the trial court. Id. at 462-63 (emphasis omitted). Such a distinction does not help guide our analysis here.

Griswold submitted the video surveillance footage to the trial court. But Fred Meyer made no argument below that the video shows that Coral did not approach the shopping cart with the dolly or that it does not show Coral placing it on top of the cart. It also did not argue to the trial court that under the...