United States District Court, D. Alaska
MEMORANDUM OF DECISION
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
This is
an action brought against Wells Fargo in which Plaintiff
seeks compensation for injuries she suffered after she
slipped and fell on January 12, 2013 at the branch of
Defendant’s bank located in Palmer, Alaska. Neither
party requested a jury trial. Accordingly, a bench trial in
the case was held in November 2015.
Federal
Rule of Civil Procedure 52(a) provides that “[i]n an
action tried on the facts without a jury . . . the court must
find the facts specially and state its conclusions of law
separately.” Having considered the testimony of the
witnesses, the exhibits admitted into evidence, and the
parties’ arguments and filings, this Court now makes
Findings of Fact and Conclusions of Law as set forth
below.[1]
II.
FINDINGS OF FACT
1.
Plaintiff Martha Burch slipped and fell on January 12, 2013,
at about 12:50 p.m., on Defendant’s sidewalk just
outside the entrance to the Palmer branch of the bank. Palmer
is a town of about 6, 000 residents located about 45 minutes
north of Anchorage, Alaska.[2] Although some evidence was
presented that Ms. Burch may have tripped, the Court finds it
more likely than not that she slipped and fell on the
sidewalk. Ms. Burch first walked on the grass, which was
crunchy, but without snow on it. She then stepped onto the
bank’s sidewalk, where she slipped and fell. The
sidewalk did not have any accumulated snow on it when Ms.
Burch fell, and it did not look slippery to Ms. Burch as she
approached it and stepped onto it. However, the sidewalk had
a thin layer of black ice on it that caused Ms. Burch to slip
and fall.
2. Ms.
Burch broke her right hip when she fell, and also lacerated
her head near her eyebrow. She has incurred significant
medical expenses as a result of the fall, and has had
considerable pain and suffering.
3.
Demetra Skylar Stewart testified at trial. Ms. Stewart was
the branch manager at the Palmer branch of Wells Fargo in
January 2013, but was not working on the day of the incident.
Based on her testimony, the Court finds that the maintenance
of the bank’s sidewalks at the Palmer branch was not
well-managed, particularly with regard to black ice removal.
Rather, the maintenance of the bank’s sidewalks was
somewhat ad hoc with the result being that the sidewalks were
not always maintained in a reasonably safe condition. For
example, on the day of the incident, when Ms. Burch’s
husband, Ronald Burch, returned to the bank for a second time
to take photographs of the scene late in the afternoon, there
was still blood and ice on the sidewalk, with very little
evidence of any ice-melt having been used, although by that
time freezing rain had been falling for a few hours.
4.
Angelina Burns was the service manager in charge at the
Palmer Wells Fargo branch the day of the incident. Based on
her testimony, as well as the weather data from the National
Oceanographic and Atmospheric Administration (NOAA) that was
admitted into evidence at trial, the Court finds it more
likely than not that when the bank employees arrived at the
branch that morning between 9 a.m. and 10 a.m., the
bank’s sidewalk was dry and not at all slippery.
5. Ms.
Burns testified that the vendor, Joe Lentz, had primary
responsibility to take care of the sidewalks each morning,
including putting down ice melt if there was any ice. The
Court did not find this testimony persuasive. Rather, Mr.
Lentz testified quite persuasively to the Court that he
actually never considered black ice or treated for it on the
bank’s sidewalks. The Court finds that Mr.
Lentz’s maintenance of the bank’s sidewalks was
limited to snow removal when there was over two inches of
accumulation.
6. On
the day of the incident, no customers had mentioned to the
bank’s employees that the sidewalks were slick prior to
Ms. Burch’s fall, and prior to the incident none of the
employees had taken a break outside of the bank building. Ms.
Burns did not notice that there was freezing rain on the day
of the incident until after Ms. Burch had fallen, when Ms.
Burns went outside for the first time since she arrived at
work that day. Ms. Burns acknowledged that there was ice on
the sidewalk when she went outside after Ms. Burch had
fallen; she described that ice as slightly slick. In an
incident report that Ms. Burns completed immediately after
Ms. Burch’s fall, Ms. Burns indicated that there was
freezing rain and black ice at the time of the fall. Based on
the weather reports admitted into evidence at trial, as well
as the testimony of both Ms. Burns and Ms. Burch, the Court
finds that there was light freezing rain falling at the time
Ms. Burch fell, which had started to fall less than one hour
prior to Ms. Burch’s fall and that there was a thin
layer of black ice on the sidewalk. As Ms. Burns testified,
black ice is typically not shiny and therefore harder to
detect. This fact is consistent with Ms. Burch’s
testimony that she did not notice the sidewalk was slippery
when she stepped onto it.
7. At
trial, Plaintiff called Jay Smith to testify, who was
qualified as an expert in the fields of mechanical
engineering, the mechanisms of a fall, and implementation of
procedures to prevent falls on snow and ice. The Court agrees
with Mr. Smith’s opinion that in January 2013 Wells
Fargo did not have an adequate procedure or plan in place for
black ice removal from the sidewalks at the Palmer branch.
Mr. Smith also opined that the bank should be monitoring the
weather conditions so as to make sure the property is safe
throughout the day for customers coming and going. The Court
agrees with this opinion to some extent-and in fact the bank
employees did monitor the weather to some extent during their
work days. But in the Court’s view, a reasonable bank
branch operator in Palmer is not required to be monitoring
the weather so continuously so as to insure that all black
ice is eliminated from its sidewalks within less than an hour
of the onset of light freezing rain. Mr. Smith also opined
that ice-melt can be put down on a dry sidewalk in advance of
freezing rain, and that ice-melt can be mixed with water for
that purpose. Because ice-melt can be effective when used in
this manner, Mr. Smith opined that the bank should have had a
system to identify when hazardous weather was likely and put
down ice-melt as a precaution. The Court disagrees with Mr.
Smith to the extent that he is asserting that the
bank’s duty of care extends to the preventative use of
ice-melt on dry sidewalks when there is a weather prediction
for freezing rain. Mr. Smith acknowledged that the only
company he was aware of that monitored the weather
predictions was responsible for monitoring ice fog on the
airport runways, where the risk of serious injuries is of a
very high magnitude. In conclusion, Mr. Smith opined that the
root cause of Ms. Burch’s slip and fall was inadequate
monitoring by the bank and failure to correct the slippery
condition caused by the freezing rain. The Court disagrees
with this conclusion, given that Ms. Burch fell within less
than an hour of the onset of the light freezing rain. In the
Court’s view, any deficiency in the bank’s
monitoring of the condition of the sidewalks was not a
substantial factor in causing Ms. Burch’s fall. Rather,
as Ms. Burch herself testified, the sidewalk did not look
slick to her immediately before she stepped onto it.
Therefore, even if bank employees had been carefully
monitoring the weather conditions, they would likely not have
noticed the slick sidewalk prior to Ms. Burch’s fall.
8. Mr.
Smith did not review Ms. Burch’s deposition or any
official weather reports before drafting his report. The
Court has accorded considerably less weight to Mr.
Smith’s opinion on causation in light of these
limitations.
9. The
NOAA weather data admitted into evidence at trial had hourly
data entries for the nearby Palmer airport. The data showed
trace precipitation first being recorded at 11:53 a.m. on the
day of the incident, and then recorded trace precipitation
for each hour thereafter, with measurable precipitation first
being recorded at 15:53 p.m. that day- three hours after the
incident. Rain is not recorded until 12:53 p.m. entry, which
is right about the time of Ms. Burch’s fall. This data
supports the Court’s conclusion that light freezing
rain had begun to fall on the sidewalk less than one hour
prior to Ms. Burch’s fall. Prior to that time, the
sidewalk was dry. The Court finds that there was no
significant accumulation ...