LARRY & MARY SHEILA HART, Plaintiffs,
v.
NORTHERN LIGHTS CASINO, a division of the Swinomish Tribe, Defendant,
No. CVDC-2006-0008
Swinomish Tribal Court
July 24, 2022
ORDER ON MOTION FOR SUMMARY JUDGMENT
Mark W. Pouley, Chief Judge.
THIS MATTER comes on before this Court on Defendant's MOTION FOR SUMMERY JUDGMENT. Upon review of the evidence presented and the argument of the parties, the Court GRANTS the motion for summary judgment and dismisses the action. The basis for this decision is as follows:
Swinomish Tribal Code 3-02.830 allows a defendant in a civil action to seek a preliminary summary judgment of dismissal of claims filed against him or her. Pursuant to Swinomish Code:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact or matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.
This statutory guide is substantially the same as summary judgment requirements in state or federal court and this court finds no basis in tribal law to adopt any different rules or procedures.[1 ] Summary judgment is appropriate if there is an absence of evidence supporting an element essential to the Plaintiffs[2 ] claim. On a motion for summery judgment, the moving party, the Defendant here, must prove that there is no genuine issue of material fact that would give rise to the Plaintiffs claim. Once this burden has been met, the burden shifts to the non-moving party, here the Plaintiff, to prove that a genuine issue exists. The Plaintiff may not simply rest upon his pleadings or offer only conclusory allegations, speculative statements or argumentative assertions.
In order to prevail at trial on a claim of personal injury, the Plaintiff, a business invitee to the Defendant's premises, must prove (1) a duty owed to the Plaintiff, (2) a breach of that duty, (3) a resulting injury and (4) a proximate cause between the breach of duty and the injury sustained. This motion turns on the first two elements. Generally, a business owner is liable to an invitee for an unsafe condition on his premises only if the condition was caused by the owner or his agents, or the owner had actual or constructive notice of the unsafe condition and failed to remedy it. A business owner must exercise reasonable care toward their invitees by inspecting for dangerous conditions and providing necessary repairs, safeguards and warnings as are reasonable. Plaintiff does not challenge this well established rule of premises liability or offer any alternate theories that this court should consider.
The Plaintiff claims he received an injury while on the Defendant's premises while he was a business invitee. In particular, he claims he was injured when he was struck by an automatic door while exiting the Defendant's premises. In answer to interrogatories the Plaintiff claims,
I stopped at the front desk to make a phone call to my wife telling her I was on my way home. As I entered the automatic doors, one flew shut on my shoulder and came off the track. It pushed me to the side. After that, two of the employees grabbed me so I would not fall. Two security guards made me sit down until I was stable enough to leave.
In support of the motion for summary judgment Defendant provided footage from a security surveillance video that clearly shows the incident. Despite being provided the opportunity to supply the court with further evidence, Plaintiff admits that this is the exclusive evidence that would be presented at trial to support Plaintiffs liability claim.[3 ] It is on this evidence alone, and the reasonable inferences that can be drawn from the evidence, that the fact-finder could find the Defendant liable for Plaintiffs injuries. This court does not find the Plaintiff has presented sufficient evidence for this matter to go forward.
Defendant provided evidence in support of it's motion that claims the Defendant had not received any prior complaints regarding the doors, and that immediately subsequent to the event the doors were working properly. Prior to the incident the doors were serviced regularly without report of any issues and shortly after the event the doors were serviced and evaluated and shown to be functioning properly. The doors are clearly marked as "Automatic Door". Plaintiff offer's no evidence to dispute these claims, but asserts he should be given an opportunity at trial to cross examine the Defendant's witnesses to challenge the allegations. Presumably the Plaintiff had the opportunity to develop evidence to support his claim for liability through the discovery process. It's during that process that defendant would learn if the Defendant failed to properly maintain the automatic doors, if the doors were improperly installed, if they weren't operating as designed or any other legal theories upon which a duty and breach may be maintained.
Unfortunately for Plaintiff it does not appear that any such evidence was discovered. Instead, the Plaintiff hopes to rely upon some yet undiscovered evidence materializing during cross examination. While such revelations occur with some frequency on television dramas they rarely present themselves in actual courtrooms, and well established law does not allow the court to permit the Plaintiff rest on such speculation to avoid a motion for summary judgment. The Plaintiff has a duty to present evidence that will be part of the record at trial upon which he will argue his theory of the case. The plaintiff may not, as here, simply hope that such evidence materializes during the course of the trial.
The Plaintiff also suggests that he should be allowed, as a matter of law, to argue to the fact-finder, from observing the video footage alone, that the doors struck the Plaintiff; doors don't ordinarily do that, so there must be liability. In essence, Plaintiff hopes to employ a form of res ipsa loquitur, the accident could not have happened without negligence on the part of the Defendant. The Plaintiff offers no basis to make such an argument and similar arguments have been rejected by other courts in similar cases. See, Brown v. Crescent Stores, 54 Wash.App. 861, (1989). Evidence provided by Defendant suggests this type of door is widely used, these doors were operating as designed and they were evaluated before and after the incident and were deemed functional. The Plaintiff must show more than the fact the door may have struck him as he exited to support a claim that the Defendant was liable for any injury he may have suffered.
Finally the Plaintiff urges the court to reject the motion for summary judgment on the grounds that to dismiss this claim creates a rule that "contributory negligence" becomes an absolute bar to any Plaintiffs claim. This mischaracterizes the argument before the court. The Defendant is not attempting to avoid liability by arguing that the Plaintiff was in any way "negligent." Instead, the Defendant avoids liability by arguing that it did not breach any duty owed to the Plaintiff. If proven, lack of Defendant's negligence is always a complete bar to liability. It must be noted that accidents happen, and sometimes injuries are sustained, without anyone being "at fault." Without any substantive proof that the Defendant was to blame for Plaintiffs accident, this appears to be one of those unfortunate instances.
Defendant's motion for summary judgment is GRANTED. The case is dismissed without prejudice. The trial and any pretrial matters currently scheduled in this matter shall be stricken.
---------
Notes:
[1 ] There are innumerable cases from Washington state and other jurisdictions that outline the well established standards for summary judgment. Without citing these many cases, or selecting one as a primary authority, this court restates these holdings as controlling law in the Swinomish Tribal Court.
[2 ] Although technically there are multiple plaintiffs in this case including the spouse and the estate of the allegedly injured party, for ease of reference the court will refer to the Plaintiff in the singular as only Larry Hart was directly involved in the incident.
[3 ] Regrettably, Plaintiff passed away after the filing of this action from causes not associated with this case. His short interrogatory answers are the only testimony from Plaintiff available to present at trial.
---------