United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
G. SULLIVAN UNITED STATES DISTRICT JUDGE
Johnny Charles (“Mr. Charles”) sues defendant
Home Depot, U.S.A., Inc. (“Home Depot”) for
negligence after he stepped in a hole in the floor of a Home
Depot store, causing him to twist and injure his ankle.
Pending before the Court is Home Depot's motion for
summary judgment. After carefully considering the motion, Mr.
Charles' response, the reply thereto, the entire record
herein, and the applicable law, the Court
DENIES Home Depot's motion.
is very little dispute as to the facts material to this case.
See, e.g., Def.'s Reply to Counter-Stmt. of
Material Facts, ECF No. 26-3. On October 16, 2013, Mr.
Charles was shopping at a Home Depot store located in
Northeast Washington, D.C. See Dep., ECF No. 25-1 at
23:6-12. He was pushing a cart when he “stepped in a
hole” and “twisted his [right] ankle.”
Id. at 28:18-22. According to Mr. Charles, the hole
was “about two inches wide and about . . . a little
under a half inch deep.” Id. at 29:17-24. Mr.
Charles estimated the hole was also about two inches long.
Id. at 40:6-9. Mr. Charles did not know what caused
the hole in the cement floor, but characterized it as
“clean-cut, ” meaning there was no other
“loose cement” nearby. Id. at 35:7-16.
twisting his ankle, Mr. Charles reported the hole and his
injury to the store manager, id. 28:18-25, and
filled out an incident report, see Ex. 2, ECF No.
25-1 at 38 (reporting that he stepped in a hole and
twisted his right ankle). According to Mr. Charles, the
manager apologized and placed a caution sign over the hole.
Dep., ECF No. 51-1 at 28:18-25. He also believed the manager
was aware of the hole prior to his injury because the manager
said “something like, I told them” when Mr.
Charles showed him the hole. Id. at 36:2-20. Home
Depot disputes that the manager placed a caution sign next to
the hole. See Nunyi Aff., ECF No. 26-1 (Home Depot
manager's attestation that, “to the best of [his]
recollection, ” he never “place[d] a caution sign
in the area Mr. Charles claimed to have injured
Mr. Charles did not believe that he had been badly injured,
see Dep., ECF No. 25-1 at 42:10-15, but his
condition changed quickly, id. at 52:13-16, and his
ankle never fully healed. Over the years, Mr. Charles wore
several “boot” casts and ankle braces, he had to
use crutches for several weeks, and ultimately, he required
physical therapy, cortisone shots, and surgery. See
Id. at 71:15-19, 84-85, 88-92. Mr. Charles still wears
an ankle brace, id. at 96:10-15, and his ankle is
still tender and painful, id. at 101:2-19. Indeed,
Mr. Charles' ankle still prevents him from partaking in
many activities that he used to enjoy. See Id. at
Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted only “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); Waterhouse v. District of
Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). The moving
party must identify “those portions of the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (quotations omitted). On the other hand, to defeat
summary judgment, the nonmoving party must demonstrate that
there is a genuine issue of material fact. Id. at
324. A material fact is one that is capable of affecting the
outcome of the litigation, while a genuine dispute is one in
which “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Further, in the summary judgment analysis
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Id. at 255.
motion for summary judgment, Home Depot argues that it was
not negligent as a matter of law. It contends that the
alleged hole in which Mr. Charles twisted his ankle cannot
constitute a dangerous condition because it was only about
two inches wide, two inches long, and a half-inch deep.
See generally Def.'s Mot., ECF No. 24. Mr.
Charles responds by arguing that whether the hole was a
dangerous condition is a question for the jury to resolve.
See generally Pl.'s Opp'n, ECF No. 25. He
contends that the Court cannot find that the hole was not
dangerous as a matter of law. See id.
District of Columbia law, which both parties agree applies,
plaintiff in a negligence action must demonstrate three
elements: that there was “a duty of care owed by the
defendant to the plaintiff, a breach of that duty by the
defendant, and damage to the interests of the plaintiff,
proximately caused by the breach.” Girdler v.
United States, 923 F.Supp.2d 168, 187 (D.D.C.
2013)(quotations and citations omitted). The plaintiff bears
the burden of “establishing that a violation of the
reasonable standard of care is the proximate cause of the
injury sustained. The mere happening of an accident does not
meet this burden.” District of Columbia v.
Cooper, 445 A.2d 652, 655 (D.C. 1982).
a store proprietor has an “obligation of due care to
protect customers from risks created by employees or risks
created by other customers.” Hudson v. Harris
Teeter, LLC, 292 F.Supp.3d 496, 499 (D.D.C.
2018)(quoting Safeway Stores, Inc. v. Morgan, 253
A.2d 452, 453 (D.C. 1969)). In this case, “the burden
is on the plaintiff to prove that the defendant was negligent
‘either in creating a dangerous condition or in
allowing one to continue without correction and that this
negligence was the proximate cause of the
injuries.'” Thomas v. Grand Hyatt Hotel,
749 F.Supp. 313, 314 (D.D.C. 1990), aff'd, 957
F.2d 912 (D.C. Cir. 1992)(quoting Paylor v. Safeway
Stores, Inc., 225 A.2d 312, 314 (D.C. 1967)). Moreover,
when liability is predicated upon the existence of a
dangerous condition, as here, “‘it is necessary
to show that the party against whom negligence is claimed had
actual notice of the dangerous condition or that the
condition had existed for such length of time that, in the
exercise of reasonable care, its existence should have become
known and corrected.'” Hudson, 292
F.Supp.3d at 499 (quoting Sullivan v. Above Net
Comm'ns, Inc., 112 A.3d 347, 356 (D.C. 2015)).
Generally, whether a condition is unreasonably dangerous or
reasonably safe is a question “for the jury.”
Cooper, 445 A.2d at 655. Because “jurors are
the triers of fact, ” id., “where there
is evidence upon which reasonable persons might differ as to
negligence and other elements of liability, those questions
must be decided by the jury, ” id. (citations
omitted)(referring to “the question of whether a
walkway is reasonably safe”).
Depot argues that the critical question in this case, whether
the hole in which Mr. Charles twisted his ankle was a
dangerous condition, is not an issue for the jury because a
half-inch deep hole is not a dangerous condition as a matter
of law. See Def.'s Mot., ECF No. 24 at 4-7
(“plaintiff cannot establish a prima facie
case of premises liability because the condition at issue was
not an unsafe condition as a matter of law”). In
support of its argument, it primarily relies on three
District of Columbia Court of Appeals (“Court of
Appeals”) cases. See Id. (discussing
Proctor v. District of Columbia, 273 A.2d 656 (D.C.
1971); Williams v. District of Columbia, 646 A.2d
962 (D.C. 1992); and Briscoe v. District of
Columbia, 62 A.3d 1275 (D.C. 2013)). In all three cases,
the Court of Appeals evaluated whether the District of
Columbia was liable for injuries caused by minor defects on
public sidewalks. In each, the Court of Appeals founds that
the protrusions, which ranged from a quarter-inch to an inch
deep, were not dangerous conditions as a matter of law. In so
concluding, the Court of Appeals recognized “what
pedestrians living in urban areas know from their own
experience: namely, that minor sidewalk elevations are not an
unusual condition for city sidewalks and are in fact what
might be called a very prevalent condition.”
Proctor, 273 A.2d at 658. Because it is
“impossible to maintain a sidewalk in perfect
condition[, ] [m]inor defects are bound to exist.”
Id. ((quoting Barrett v. City of Claremont,
41 Cal. 2d 70');">41 Cal. 2d 70, 73 (1953)). Accordingly, the Court of Appeals
held that “[a] municipality cannot be expected to
maintain the surface of its sidewalks free from all
inequalities and from every possible obstruction to travel.
Minor defects due to continued use, or action of the
elements, or other cause, will not necessarily make the city
liable for injuries caused thereby.” Id.
(quoting Barrett, 41 Cal. 2d at 73). Applying this
logic, the Court of Appeals has consistently held that the
District of Columbia cannot be liable for injuries caused by
de minimis defects on public sidewalks. See
Briscoe, 62 A.3d at 1278-79 (discussing
Proctor, 273 A.2d at 658 and Williams, 46
A.2d at 963).
cases, however, are not directly on point-they all involve
municipality liability and public sidewalks. In each case,
the Court of Appeals stressed that the protrusions existed on
public sidewalks, where minor defects are
“bound to exist.” Proctor, 273 A.2d at
658. Home Depot has not explained whether or why such defects
are also “bound to exist” in retail stores, which
are presumably less traveled and not exposed to the same
elements. See generally Def.'s Mot., ECF No. 24;
Def.'s Reply, ECF No. 26. Home Depot has also not
addressed the fact that customers' expectations of retail
store conditions likely are different from their expectations
of public sidewalk conditions, based on their experiences.