United States District Court, D. Utah, Central Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (ECF NO. 25)
J. FURSE United States Magistrate Judge.
Blazin Wings, Inc.,  (“Blazin Wings”), moves for
summary judgment.(Defs.' Mot. for Summ. J. & Inc.
Mem. in Supp. (Mot.), ECF No. 25.) Plaintiff, Roland
Critchfield, alleges that on the night of February 7, 2014,
Blazin Wings negligently, through its actions or inactions,
caused Mr. Critchfield to fall on a wet, soapy floor and
injure himself in its Sandy, Utah restaurant. (Compl. 2-3,
Exh. B, ECF No. 2.) Having carefully considered the
parties' memoranda, the record in this case, oral
arguments, and the law, viewing all facts in the light most
favorable to Mr. Critchfield, the Court GRANTS Blazin Wings
summary judgment on the negligence claim because Blazin Wings
did not owe Mr. Critchfield a duty.
grant summary judgment when the pleadings, the discovery
materials on file, and any affidavits demonstrate “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). Only facts “essential to the proper disposition
of a claim” qualify as material. Crowe v. ADT Sec.
Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011).
“‘[W]here the non moving party will bear the
burden of proof at trial on a dispositive issue' that
party must ‘go beyond the pleadings' and
‘designate specific facts' so as to ‘make a
showing sufficient to establish the existence of an element
essential to that party's case' in order to survive
summary judgment.” McKnight v. Kimberly Clark
Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
When applying the summary judgment standard, the Court views
“[t]he factual record and reasonable inferences
therefrom … in the light most favorable to the party
opposing summary judgment.” Byers v. City of
Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998).
Court considers the following facts in determining the Motion
for Summary Judgment. All facts come from parties'
briefings and accompanying exhibits. The undersigned resolves
all disputed issues of material fact in favor of Mr.
February 7, 2014, around 10:15 p.m., Roland Critchfield drove
to the Buffalo Wild Wings Bar & Grill restaurant in
Sandy, Utah. (Videotaped Dep. of Roland Critchfield
(Critchfield Dep.) 68, 71, 73, Exh. A, ECF No. 25-2.) Before
joining the group he planned to meet, Mr. Critchfield went
immediately to the bathroom. (Id. at 73.)
the bathroom, Mr. Critchfield noticed a small yellow sign on
the floor by the urinal saying “Caution Wet
Floor.” (Pl.'s Mem. in Opp'n to Def.'s Mot.
for Summ. J. (“Opp'n”), Facts ¶¶ 2,
12, ECF No. 27.) Mr. Critchfield recognized the sign to
indicate wet floor, walk with caution. (Id. at
¶¶ 3-6.) Upon taking approximately four steps into
the room, Mr. Critchfield perceived wetness underfoot and
felt uncomfortable. (Id. at ¶ 12.) Mr.
Critchfield observed “more water than you would expect
to see on a public restroom floor indicating that either a
toilet had overflowed or perhaps cleaning hadn't been
finished.” (Id. at ¶ 13; Defs.' Reply
in Further Supp. of Their Mot. for Summ. J.
(“Reply”), Facts ¶ 13, ECF No. 28.)
“extreme caution” Mr. Critchfield made his way to
the urinal. (Opp'n Facts ¶ 6, ECF No. 27.) Mr.
Critchfield finished at the urinal and headed toward the
sink. (Id. at ¶ 8.) Before reaching the sink,
Mr. Critchfield slipped and fell hurting himself.
(Critchfield Dep. 75-76, ECF No. 25-2.) Mr. Critchfield then
got up, washed off at the sink, exited the restroom, and
joined his party at the table. (Id. at 76-77, 98.)
Mr. Critchfield completed a “Guest Statement”
describing the incident before leaving the restaurant.
(Critchfield Dep. Exh. 7, ECF No. 25-2.)
Critchfield attempts to create an issue regarding the size of
the wet area on the floor. (Opp'n Facts ¶¶
16-17, ECF No. 27.) The Court finds the issue not genuinely
Mr. Critchfield's deposition, Mr. Critchfield testified
to the portion of bathroom floor he perceived as wet.
(See Critchfield Dep. 97-98 & Exh. 1, ECF No.
25-2.) This wet area appears adjacent to the urinal Mr.
Critchfield selected and between the urinal and the location
of the yellow caution sign. (See Critchfield Dep.
96-97 & Exh. 1, ECF No. 25-2.) By contrast Mr.
Critchfield's subsequent declaration states, “[t]he
entire restroom floor was wet and slippery.” (Pl.s'
Decl. in Opp'n to Defs.' Mot. for Summ. J.
(Critchfield Decl.) ¶ 5, Exh. B, ECF No. 27.) The area
of wetness Mr. Critchfield testifies to in his deposition
directly conflicts with the area of wetness he identifies in
summary judgment, courts disregard affidavits that contradict
earlier deposition testimony when they conclude the affidavit
reflects an attempt to create a sham dispute of fact.
Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.
1986). The Court utilizes the following factors to determine
whether Mr. Critchfield has attempted to create a sham disput
of fact: whether “(1) the affiant was cross-examined
during his earlier testimony; (2) the affiant had access to
the pertinent evidence at the time of his earlier testimony
or whether the affidavit was based on newly discovered
evidence; and (3) the earlier testimony reflects confusion
which the affidavit attempts to explain.” Ralston
v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973
(10th Cir. 2001).
addition to his drawing on the photograph of the bathroom at
his deposition showing the area of the wet floor, Mr.
Critchfield made other statements at his deposition
corroborating the notion that the wet area did not cover the
entire bathroom floor. For example, Mr. Critchfield notes
that he perceived the wetness underfoot four steps into the
bathroom. (Opp'n Facts ¶ 12, ECF No. 27.) Had the
entire floor been covered with “more water than you
would expect to see on a public restroom floor indicating
that either a toilet had overflowed or perhaps cleaning
hadn't been finished, ” Mr. Critchfield would have
felt the water underfoot immediately. (See Id. at
¶ 13; Reply, Facts ¶ 13, ECF No. 28.) Furthermore,
four steps into the bathroom would certainly bring Mr.
Critchfield into the area of wetness indicated during his
deposition. (See Critchfield Dep. Exh. 1, ECF No.
the first factor in determining whether to exclude the
affidavit, Mr. Critchfield made all the above-cited
deposition statements during the portion of the deposition
conducted by counsel for Blazin Wings, not Mr.
Critchfield's attorney, thus making the statements under
cross-examination. (See Critchfield Dep. 3, ECF No.
25-2.) Regarding the second factor, Mr. Critchfield possessed
access to the pertinent evidence at the time of his
deposition because the testimony relates to his personal
perception of the prior incident. (Critchfield Dep. 68, 71,
73, 97-98, ECF No. 25-2.) Turning to the third factor, Mr.
Critchfield's deposition testimony did not leave any
lingering confusion on this point. In fact, Mr. Critchfield
drew the area of wetness during his deposition in response to
the question - “Now, with respect to the spread of the
water, as you recall it today, is there any way that we can
draw an area where the water would have been on the day of
the incident, or the evening of the incident to reflect where
the floor was wet all the way from, you know, a tile or two,
or four, to the entire floor? I mean, do you remember the
area that you think was wet?” (See Critchfield
Dep. 97, ECF No. 25-2.) Mr. Critchfield answered, “That
I know was wet?” and indicated the area of wetness by
drawing the circle onto the photograph of the bathroom.
(See Id. at 97-98 & Exh. 1, ECF No. 25-2.) In
sum, all three factors clearly align against consideration of
including the assertion in his declaration that the soapy
water covered the entire floor, Mr. Critchfield attempts to
create an issue of fact regarding the extent of the wetness.
Whether soapy water covered a portion of the floor near the
urinal or the entire floor changes the potential duty owed by
Blazin Wings. Thus, the size of the area covered by the soapy
water constitutes a material fact. Summary judgment requires
the Court to assume all material factual disputes in the
non-moving party's favor. Byers, 150 F.3d at
1274. Should this dispute reflect a legitimate disagreement,
the Court would have to find soapy water covered the entire
bathroom floor. Because this finding could increase the duty,
if any, that Blazin Wings owed with regards to the condition,
Mr. Critchfield has a strong incentive to contradict his
earlier testimony to allow his claims to survive summary
judgment. However, Mr. Critchfield deserves no favorable
inference drawn from a sham factual dispute he created.
“[T]he the utility of summary judgment as a procedure
for screening out sham fact issues would be greatly
undermined if a party could create an issue of fact merely by
submitting an affidavit ...