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ISSAQUAH LAW GROUP   PERSONAL INJURY LITIGATION LAWYERS

Issaquah Law Group - Injury Litigation Attorneys

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Issaquah Law Group Prevails at Ninth Circuit: Warning Cones Don't Require Warning Cones

Helm v. Lowe's Home Centers, LLC

Issaquah Law Group is pleased to announce it has prevailed at the Ninth Circuit Court of Appeals. 

The case stems from a trip and fall involving a retailer. In this case, the customer claims he tripped, then also claims he did not trip, but was startled by, a large yellow warning cone:

3 feet of warning.

3 feet of warning.

While the customer claimed he had tripped on the caution cone, the video showed a different story. The man appeared to get near the cone, but maneuvered around it without touching the cone or the cone moving. He then fell to the ground. At issue was whether ILG's client had any negligence due to a caution cone.

During discovery, ILG also issued Requests for Admission. The Plaintiff did not answer the requests, and the requests were "deemed admitted" by the Court:

On January 20, 2017, Lowe's served Helm with requests for admissions. It is undisputed that Helm failed to timely respond to the requests and that failure to respond results in the requests deemed admitted. In relevant part, Helm admitted that (1) "at the time of the alleged incident a yellow caution cone was located in front of merchandise on display," (2) he "tripped on the yellow caution cone at the time of the alleged incident," (3) he "observed the yellow caution cone before [he] tripped and fell," and (4) "there was nothing obstructing [his] vision of the yellow caution cone at the time of the alleged incident."

Order Granting Motion for Summary Judgment.

The Federal District Court for the Western District of Washington dismissed the case, finding that the warning cone was an "open and obvious" condition, to which the Client owed no duty to warn. Specifically, the Court looked to a Minnesota case, which noted that no one should have to warn someone of a warning cone. You would have warning cones to warn of the warning cones. In fact, ILG called attention to this fact in its brief, deeming it the duty of the seven C's:

If this duty indeed existed, in the present scenario it may be appropriately labeled: Compulsory Caution Cones to Caution Customers of a Caution Cone (hereinafter "CCCCCCC" or the "duty of the 7 C's").

The District Court agreed with ILG:

Taking the admissible facts in the light most favorable to Helm, he has failed to establish that Lowe's had a duty to warn him of the safety cone. Helm admits that he saw the cone before he tripped over it and that nothing obstructed his view of the cone. Moreover, the cone was 36 inches tall and bright yellow. Thus, the cone was an open and obvious warning marker. Any actual danger of tripping over the cone could have been avoided by exercising reasonable care. Accordingly, the Court concludes that Lowe's did not have a duty to protect Helm from its warning cone.

Helm, however, advances numerous unfounded allegations in support of his claim. For example, Helm asserts that "the cone was obscured from pedestrians exiting the store . . . ." Dkt. 14 at 7. There are no admissible facts in the record to support this assertion. In fact, the facts in the record establish that Helm saw the cone before he tripped over it. Similarly, Helm asserts that he "was unable to see the cone until it was almost too late to avoid it." Id. Although there are no facts in the record to support this assertion, Helm contends that, by looking at the still frames, a reasonable juror could infer that Helm did not observe the cone because the cone did not move when Helm fell to the ground. He asserts that he "was surprised by [the cone's] presence and in trying to come to a sudden stop or to avoid it, fell. One does not have to touch a hazard to fall because of it." Id. In other words, Helm argues that Lowe's had "a legal duty to provide visitors warning upon warning, ad infinitum." Engleson, 362 F.3d at 530. Such a position is untenable. Lowe's does not have a duty to issue warnings regarding the placement of warning cones. Lowe's may expect an invitee to care for himself in exiting the building without either tripping over or falling to avoid tripping over warning cones. Therefore, the Court concludes that Helm's position is without merit.

After losing at the District Court, the case was appealed. Plaintiff did not challenge the deeming of the requests admitted, but rather argued that the District Court should not have considered an Eighth Circuit case involving caution cones, which was directly on point. He also argued it was inappropriate for the District Court to strike large portions of his attorney's declaration, though the attorney was attempting to introduce opinions about the case and speculation regarding the purpose of the warning cones. Finally, he also contended the warning cones were not an open and obvious condition.

The Ninth Circuit Court of appeals agreed with ILG on all points, deciding the case without oral argument:

Because there was no Washington case directly on point, the district court also cited Engleson, noting that it applied the relevant Restatement provision under very similar circumstances. The district court did not err in considering this authority to predict how the Washington Supreme Court would apply the Restatement under the facts of this case. . . . 

Helm argues that the district court erred by granting Lowe's motion to strike materials in his brief . . . because the motion to strike was set forth in the reply brief. But the local rules for the Western District of Washington specifically provide that requests to strike material contained in briefs "shall not be presented in a separate motion to strike, but shall instead be included in the responsive brief.

Moreover, the court did not abuse its discretion in granting the motion. The stricken statements by Helm's counsel speculated as to the purpose of the placement of the cone and offered his opinions about whether Lowe's was negligent. Counsel neither witnessed the incident nor provided any foundation for his expertise or opinions. See, Fed. R. Evid. 701(a) (requiring lay testimony to be "rationally based on the witness's perception"); Fed. R. Evid.702(b)-(c) (requiring expert testimony to be "based on sufficient facts or data" and "the product of reliable principles and methods"); Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must . . . set out facts that would be admissible in evidence . . . ."). . . . 

Given Helm's admissions, together with the undisputed evidence about the color, height, and placement of the cone, the district court correctly concluded that "the cone was an open and obvious warning marker," and that there was "no admissible facts in the record to support" Helm's Tort Claim.

You may follow the link to the Ninth Circuit Opinion.

With this decision, ILG attorney Justin Walsh maintains his perfect record on appeal. At Issaquah Law Group, our attorneys understand the intricacies of premises liability law, and we will work to ensure the Plaintiff meets their burden. We have a greater than fifty percent success rate on motions for summary judgment, and we will work to ensure any premises liability claims are properly put to their burden of proof. 

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