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Critchfield v. Blazin Wings, Inc.

United States District Court, D. Utah, Central Division

May 12, 2017



          EVELYN J. FURSE United States Magistrate Judge.

         Defendant Blazin Wings, Inc., [1] (“Blazin Wings”), moves for summary judgment.[2](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.


         Courts 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).


         The 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. Critchfield.

         On 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.)

         Entering 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.)

         Using “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.)

         Mr. 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 disputed.

         During 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 his declaration.

         At 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).

         In 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. 25-2.)

         As to 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 the declaration.

         By 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 ...

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