Clemmons v. FC Stapleton II, LLC , 485 F. App'x 904 ( 2012 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    May 29, 2012
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    YVONNE CLEMMONS;
    LUTHER CLEMMONS,
    Plaintiffs-Appellants,
    v.                                                   No. 11-1119
    (D.C. No. 1:09-CV-00710-MSK-MJW)
    FC STAPLETON II, LLC,                                 (D. Colo.)
    Defendant-Appellee.
    ORDER AND JUDGMENT *
    Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
    Circuit Judge.
    After she tripped and fell on an uneven concrete slab sidewalk, Yvonne
    Clemmons and her husband, Luther Clemmons sued defendant FC Stapleton II,
    LLC, 1 asserting negligence, premises liability, and loss of consortium claims.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value
    consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    1
    Considerable confusion prevailed in the district court about the identity of
    the appropriate landowner defendant in this case. See, e.g., Aplt. App., Vol. I at
    (continued...)
    The district court granted summary judgment to FC Stapleton on the ground that
    it had no notice of the defective sidewalk and denied plaintiffs’ motion for
    reconsideration.
    In this appeal, plaintiffs challenge the grant of summary judgment on the
    premises liability claim. Because we agree with plaintiffs that genuine issues of
    material fact remain concerning whether FC Stapleton was on constructive notice
    of a dangerous condition that caused Ms. Clemmons’ injuries, we reverse and
    remand for further proceedings.
    BACKGROUND
    The accident occurred on May 25, 2007, when Ms. Clemmons tripped and
    fell on the sidewalk in front of EB Games at the Quebec Square shopping center,
    resulting in her injuries. As she described the accident, “I was walking along, and
    1
    (...continued)
    35-36 & n.4, 45-46, 48-52, 78-79. The district court substituted FC Stapleton for
    the original defendant in the case, “Forest City Commercial Management Inc.
    DBA FC Stapleton II, LLC,” see 
    id. at 9 (bolding
    & capitalization omitted). It
    then entered summary judgment in favor of FC Stapleton, see 
    id. at 95, and
    later
    treated FC Stapleton as the appropriate defendant in its opinion and order denying
    the Clemmons’ motion for reconsideration, see 
    id. at 135-40. Although
    FC
    Stapleton has appeared and filed an appellee’s brief in this appeal, it has also
    notified us, as it did the district court, that “[t]he proper landowner in this case is
    [a related entity,] Quebec Square SPE, LLC.” Aplee. Br. at 3 n.1.
    FC Stapleton does not seek dismissal of either the case or this appeal on the
    ground that it is not the appropriate party to be sued. Because FC Stapleton was
    the party of record in the district court and is the party of record in this appeal,
    we will treat it as the appropriate party for purposes of this disposition. The
    parties remain free to seek substitution of the appropriate party on remand.
    -2-
    my foot just came in contact with the rise of the sidewalk, and I fell forward.”
    Aplt. App., Vol. II at 189 (depo. p. 53). She estimated the rise in the sidewalk
    over which she tripped was an inch and a half to two inches high.
    The Summary Judgment Evidence
    In response to FC Stapleton’s motion for summary judgment, plaintiffs
    presented both lay and expert testimony and photographic evidence concerning
    the condition of the sidewalk where Ms. Clemmons fell. Mr. Clemmons, who had
    some experience in the construction industry, returned to the location on the
    following day and took photographs of the sidewalk. He estimated that it would
    have taken “[p]robably six months or a year” for the sidewalk to settle, resulting
    in the “approximately two [or] two and a half [inch]” rise between slabs that he
    observed. 
    Id. at 182 (depo.
    p. 13); 183 (depo. p. 44).
    On the date of the incident, Karla Maria Allen, Ms. Clemmons’ daughter,
    took date-stamped photographs of the sidewalk where Ms. Clemmons fell. The
    photographs were submitted as evidence. She estimated that “the elevation
    between the two adjoining sidewalk slabs where my mother . . . tripped and fell
    was more than one inch in height.” 
    Id. at 202. An
    expert affidavit came from Ruperto Esquibel, who identified himself as
    “an expert in concrete sidewalks, walkways, curbs, driveways, and gutters.” 
    Id. at 210. Having
    reviewed photographs of the area where Ms. Clemmons fell,
    which were submitted to the court with his affidavit, he opined that:
    -3-
    a)    There was a defect in the concrete slab prior to the date of the
    accident which caused Yvonne Clemmons to trip and fall.
    b)    The probable cause of the defect was settling of the concrete
    slab due to inadequate and/or defective compaction prior to
    pouring the concrete.
    c)    The probable cause of the defect was also defective
    workmanship and/or installation.
    d)    This defective condition appeared to have developed over a
    period of three months or more.
    e)    The best way to have remedied the defective sidewalk was to
    tear out the sunken section of the defective sidewalk and to
    completely replace [it] with new concrete.
    f)    . . . [T]he defect created a dangerous and hazardous condition
    for pedestrians on the sidewalk.
    
    Id. at 211 (emphasis
    added).
    For its part, FC Stapleton presented the affidavit of E. Kemel Blue, Jr.,
    Vice President and General Manager for Forest City Commercial Management,
    Inc. Mr. Blue stated that prior to Ms. Clemmons’ trip and fall, “FC Stapleton had
    not received any complaints or concerns regarding this particular sidewalk outside
    of EB Games.” 
    Id., Vol. I at
    144. Mr. Blue also noted that
    FC Stapleton employs contract security guards who patrol Quebec
    Square each night to check that all business doors are locked. If
    guards see any issues requiring maintenance or hazards that could
    present a danger to patrons, they are instructed to provide notice to
    FC Stapleton. Those security guards have not reported any
    -4-
    complaints or concerns regarding uneven sections of concrete on this
    particular sidewalk to FC Stapleton, including with regard to the area
    in front of EB Games.
    
    Id. Finally, Mr. Blue
    noted that pursuant to FC Stapleton’s routine inspection
    procedure, its maintenance personnel “conducted a property inspection between
    May 1, 2007 and May 5, 2007 which revealed no issues with the subject sidewalk
    near EB Games.” 
    Id. at 145. Mr.
    Blue attached a copy of the inspection report to
    his affidavit.
    FC Stapleton also presented a deposition excerpt from Manuel Moscato, a
    Maintenance Supervisor/Operations Manager for Forest City Commercial
    Management, Inc., who stated that he had conducted weekly inspections of the
    area in front of EB Games, but had never noticed any problems there even after
    Ms. Clemmons tripped and fell. Mr. Blue filed a supplemental affidavit in which
    he stated that FC Stapleton did not receive any notice that it was in violation of
    the Denver Municipal Code with respect to the sidewalk where Ms. Clemmons
    had her accident. 2
    2
    Plaintiffs had argued that the height of the sidewalk defect violated
    Denver’s Revised Municipal Code, constituting constructive notice per se to FC
    Stapleton. They do not renew this argument on appeal.
    -5-
    The Summary Judgment Ruling
    On summary judgment, the district court first ruled that plaintiffs could not
    maintain a common-law negligence action, because Colorado’s premises liability
    statute had abrogated the common law of landowner duties. Plaintiffs do not
    dispute this disposition of their negligence claim.
    The district court next turned to plaintiffs’ ability to prove a substantive
    claim under the premises liability statute. Under this statute, it noted, FC
    Stapleton would be liable for any “unreasonable failure to exercise reasonable
    care to protect [an invitee like Ms. Clemmons] against dangers of which [it]
    actually knew or should have known.” Colo. Rev. Stat. § 13-21-115(3)(c)(I).
    The district court concluded that plaintiffs had “not come forward with sufficient
    evidence to create a triable issue of fact with regard to whether FC Stapleton had
    [actual or constructive] notice of the sidewalk’s dangerous condition.” Aplt.
    App., Vol. I at 88-89. After surveying plaintiffs’ evidence, it opined that “the
    fact that Mr. Clemmons, Ms. Clemmons, their daughter, or Mr. Esquibel
    examined the premises after the incident and ascertained a defect does not amount
    to proof that FC Stapleton had actual or constructive knowledge of the defect
    prior to the accident.” 
    Id. at 89. Therefore,
    plaintiffs could not “establish their
    claim of statutory premises liability.” 
    Id. at 93. -6-
          Plaintiffs’ Motion for Reconsideration
    Plaintiffs subsequently filed their motion for reconsideration or motion to
    alter or amend the district court’s judgment pursuant to Fed. R. Civ. P. 59(e).
    They argued, among other things, that
    [s]ince the defect in the case at bar existed for three months or more
    prior to the incident [according to Mr. Esquibel’s affidavit] and the
    defective condition of the sidewalk was in front of EB Games store,
    an area traversed by shoppers, a jury question has arisen as to
    whether the defect should have been seen by the Defendant Stapleton
    by and through its agents, servants and/or employees prior to . . .
    Yvonne Clemmons’ trip and fall May 25, 2007.
    Aplt. App., Vol. I at 99.
    Plaintiffs further argued that given the regular inspections FC Stapleton and
    its employees conducted of the area where Ms. Clemmons fell, “the jury must
    decide whether Defendant Stapleton looked but did not see the defective
    condition prior to the incident” and was therefore on constructive notice of it. 
    Id. at 101 (internal
    quotation marks omitted). The district court denied the motion,
    reasoning that plaintiffs had not previously relied on FC Stapleton’s inspections
    to establish constructive notice, and that in any event, the combination of
    Mr. Esquibel’s expert opinion and the inspection reports was insufficient to
    establish constructive notice. The district court reasoned as follows:
    The Plaintiffs’ expert opines that “this defective condition appeared
    to have developed over a period of three months or more.” The
    curious word here is “developed.” The Plaintiffs’ expert is not
    stating that a dangerous condition “existed” for three months or
    more, and the use of the term “developed” suggests that the dangerous condition
    -7-
    of the sidewalk evolved over a three month period – i.e. going from a state in
    which the sidewalk segment began as level, progressively becoming slightly
    elevated, and eventually becoming the dangerously elevated condition that Ms.
    Clemmons encountered. The expert’s opinion does not reveal on what date he
    believes the sidewalk defect became a condition that was both dangerous and
    sufficiently conspicuous such that FC Stapleton’s inspectors should have taken
    notice of it.
    
    Id. at 138-39. This
    appeal followed.
    ANALYSIS
    Standard of Review
    “We review the district court’s grant of summary judgment de novo,
    viewing the evidence in the light most favorable to the non-moving party.”
    McCarty v. Gilchrist, 
    646 F.3d 1281
    , 1284 (10th Cir. 2011). “Summary judgment
    is appropriate when there is no genuine issue of material fact and the movant is
    entitled to judgment as a matter of law.” 
    Id. at 1284-85. When
    applying this
    standard, we draw reasonable inferences from the evidence in the light most
    favorable to the non-moving party. Koch v. Del City, 
    660 F.3d 1228
    , 1238
    (10th Cir. 2011). We review the district court’s denial of a Rule 59 motion for
    reconsideration for an abuse of discretion. Ysais v. Richardson, 
    603 F.3d 1175
    ,
    1180 (10th Cir.), cert. denied, 
    131 S. Ct. 163
    (2010).
    In a case founded on diversity of citizenship, we apply the substantive law
    of the forum state. Haberman v. Hartford Ins. Grp., 
    443 F.3d 1257
    , 1264
    (10th Cir. 2006). In this case, Colorado is the forum state. We therefore apply
    -8-
    Colorado law in examining the district court’s grant of summary judgment. See
    State Farm Mut. Auto. Ins. Co. v. Fisher, 
    618 F.3d 1103
    , 1106 (10th Cir. 2010).
    Constructive Notice
    Colorado’s Premises Liability Statute makes a landowner liable to an
    invitee “for damages caused by the landowner’s unreasonable failure to exercise
    reasonable care to protect against dangers of which he actually knew or should
    have known.” Colo. Rev. Stat. § 13-21-115(3)(c)(I). The principal issue in this
    appeal is whether FC Stapleton “actually knew or should have known” of the
    defective sidewalk condition that allegedly caused Ms. Clemmons’ injuries.
    “[T]he statute’s requirement that the landowner ‘knew or should have
    known’ of the danger can be satisfied by either actual or constructive
    knowledge.” Lombard v. Colo. Outdoor Educ. Ctr., Inc., 
    187 P.3d 565
    , 568
    (Colo. 2008). It is enough to establish that the landowner should have known of
    the condition; actual knowledge is not required. 
    Id. at 571. Under
    Colorado law,
    “constructive knowledge” is “knowledge that one exercising reasonable diligence
    should have.” 
    Id. “[A] dangerous condition
    should have been known to exist if it is
    established that the condition had existed for such a period of time and was of
    such a nature that, in the exercise of reasonable care, such condition and its
    dangerous character should have been discovered.” 
    Id. (quotation omitted). “[A]s
    a matter of public policy and public safety, it is entirely appropriate that the
    -9-
    law impute certain knowledge to prevent individuals from denying knowledge or
    acting in a way so as to remain ignorant.” 
    Id. at 571-72. In
    applying Colorado law relative to constructive notice of a defective
    condition, we find persuasive the factually-similar case of Bodeman v. Shutto
    Super Markets, Inc., 
    593 P.2d 700
    (Colo. 1979). In that case the plaintiff, an
    elderly woman, “was injured when the shopping cart which she was pushing
    overturned on a sloped asphalt ramp leading from the sidewalk in front of [a]
    grocery store to the parking lot.” 
    Id. at 701. There
    was a hole in the ramp four
    inches wide and two inches deep at the point where the cart overturned. The
    plaintiff sued under common-law negligence principles, which relied on a
    definition of constructive knowledge of a dangerous condition essentially
    indistinguishable from that subsequently given by the Colorado courts to
    constructive knowledge under the Premises Liability Statute:
    Before there can be liability for injuries resulting from a dangerous
    condition, it must be shown . . . that the defendant had constructive
    knowledge of the condition and failed to correct it ([i.e.], that the
    condition had existed for such a period of time that the defendant, in
    the exercise of due care, could have and should have known of it).
    
    Id. (alteration omitted) (internal
    quotation marks omitted). 3
    3
    FC Stapleton argues that plaintiffs’ reliance on Bodeman is misplaced
    because the case involves a claim of simple negligence and predates the passage
    of the Premises Liability Statute. In light of the indistinguishable definition of
    constructive knowledge applied by Bodeman and Colorado courts interpreting the
    Premises Liability Statute, we find FC Stapleton’s attempt to distinguish
    (continued...)
    -10-
    The Colorado Supreme Court granted certiorari in Bodeman after the
    Colorado Court of Appeals overturned a jury verdict in favor of the plaintiff. The
    Court of Appeals had reasoned that (1) she had failed to show that the defendant
    had actual knowledge of the hole and (2) as to constructive knowledge, she had
    presented no evidence concerning how long the hole had been there before the
    accident. The Colorado Supreme Court sided with the dissent in the Colorado
    Court of Appeals’ decision, which had pointed out that a hole like the one in
    question “does not develop suddenly” and that the jury could draw an inference
    that it had existed for a sufficient period of time to put the defendant on notice
    that it needed to repair it or warn customers of it. 
    Id. (emphasis added). The
    Court stated:
    This is not a case in which the transitory nature of the defect creates
    a grave doubt as to whether the defendant could, in the exercise of
    reasonable caution, have discovered it, or as to whether the defect
    existed at all. As a matter of law, the evidence relating to the hole in
    the asphalt ramp, the dangerous condition which caused plaintiff’s
    injuries, created an issue as to whether [the defendant] had
    constructive notice of the existence of the hole.
    
    Id. at 702 (citations
    omitted).
    Similarly, in this case, a reasonable jury could infer from the evidence that
    the uneven sidewalk that allegedly caused Ms. Clemmons’ injuries had existed for
    such a period of time that FC Stapleton should reasonably have become aware of
    3
    (...continued)
    Bodeman unpersuasive.
    -11-
    it before the accident. Although none of plaintiffs’ witnesses testified directly as
    to the exact period of time the defect Ms. Clemmons encountered was in
    existence, they estimated that it had developed over a period of months. Given
    the reasoning in Bodeman, Mr. Esquibel’s use of the word “developed” rather
    than the word “existed” is not inconsistent with Colorado case law concerning
    constructive notice of a danger. A reasonable jury could infer that this was not a
    defect that “develop[ed] suddenly” before FC Stapleton had a chance to become
    aware of it. 
    Id. at 701. We
    consider briefly two additional points raised by FC Stapleton. First, it
    argues that the “look but not see doctrine,” advanced in plaintiff’s motion for
    reconsideration, has no place in a premises liability case. Aplee. Br. at 13. We
    need not decide, however, whether plaintiffs could use FC Stapleton’s own
    inspections to prove that FC Stapleton should have been on notice of the defect.
    Under Colorado’s objective standard, the issue was whether the defect had existed
    for such a period of time and was of such a nature that, in the exercise of
    reasonable care, the condition and its dangerous character should have been
    discovered. Under this standard FC Stapleton could have been on constructive
    notice even if it never conducted weekly or monthly inspections.
    Although FC Stapleton provided evidence that it conducted regular
    inspections and that its employees had not noticed the defective sidewalk in an
    inspection conducted three weeks before the accident, this only demonstrates the
    -12-
    existence of a factual dispute concerning when the defect existed and whether FC
    Stapleton should have been aware of it. FC Stapleton’s evidence is countered by
    plaintiffs’ evidence that the defect did exist and should have been noticed. Such
    material fact disputes, which may implicate issues of credibility, cannot be
    resolved on summary judgment but must ultimately be resolved by the trier of
    fact.
    Second, FC Stapleton argues that it did exercise reasonable care to protect
    against dangers on the sidewalk. It refers to its weekly and monthly inspections,
    none of which “revealed a dangerous condition on the sidewalk where
    Ms. Clemmons fell.” 
    Id. at 15. But
    this is merely another way of attempting to
    resolve the material factual dispute in this case by way of summary judgment.
    While this is evidence of reasonable care, it may still be the case that the
    inspection program failed to identify a hazard that was obvious.
    The judgment of the district court is REVERSED and the case is
    REMANDED for further proceedings in accordance with this order and judgment.
    Entered for the Court
    Timothy M. Tymkovich
    Circuit Judge
    -13-