                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
JOHNNY CHARLES,                )
                               )
           Plaintiff,          )
                               )
     v.                        )    Case No. 16-cv-2054 (EGS)
                               )
HOME DEPOT, U.S.A., INC.,      )
                               )
           Defendant.          )
______________________________)

                      MEMORANDUM OPINION AND ORDER

       Plaintiff Johnny Charles (“Mr. Charles”) sues defendant

Home Depot, U.S.A., Inc. (“Home Depot”) for negligence after he

stepped in a hole in the floor of a Home Depot store, causing

him to twist and injure his ankle. Pending before the Court is

Home Depot’s motion for summary judgment. After carefully

considering the motion, Mr. Charles’ response, the reply

thereto, the entire record herein, and the applicable law, the

Court DENIES Home Depot’s motion.

  I.     Background

       There is very little dispute as to the facts material to

this case. See, e.g., Def.’s Reply to Counter-Stmt. of Material

Facts, ECF No. 26-3. On October 16, 2013, Mr. Charles was

shopping at a Home Depot store located in Northeast Washington,

D.C. See Dep., ECF No. 25-1 at 23:6-12. He was pushing a cart


                                   1
when he “stepped in a hole” and “twisted his [right] ankle.” Id.

at 28:18-22. According to Mr. Charles, the hole was “about two

inches wide and about . . . a little under a half inch deep.”

Id. at 29:17-24. Mr. Charles estimated the hole was also about

two inches long. Id. at 40:6-9. Mr. Charles did not know what

caused the hole in the cement floor, but characterized it as

“clean-cut,” meaning there was no other “loose cement” nearby.

Id. at 35:7-16.

     After twisting his ankle, Mr. Charles reported the hole and

his injury to the store manager, id. 28:18-25, and filled out an

incident report, see Ex. 2, ECF No. 25-1 at 38 1 (reporting that

he stepped in a hole and twisted his right ankle). According to

Mr. Charles, the manager apologized and placed a caution sign

over the hole. Dep., ECF No. 51-1 at 28:18-25. He also believed

the manager was aware of the hole prior to his injury because

the manager said “something like, I told them” when Mr. Charles

showed him the hole. Id. at 36:2-20. Home Depot disputes that

the manager placed a caution sign next to the hole. See Nunyi

Aff., ECF No. 26-1 (Home Depot manager’s attestation that, “to

the best of [his] recollection,” he never “place[d] a caution

sign in the area Mr. Charles claimed to have injured himself”).




1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
                                2
      Initially, Mr. Charles did not believe that he had been

badly injured, see Dep., ECF No. 25-1 at 42:10-15, but his

condition changed quickly, id. at 52:13-16, and his ankle never

fully healed. Over the years, Mr. Charles wore several “boot”

casts and ankle braces, he had to use crutches for several

weeks, and ultimately, he required physical therapy, cortisone

shots, and surgery. See id. at 71:15-19, 84-85, 88-92. Mr.

Charles still wears an ankle brace, id. at 96:10-15, and his

ankle is still tender and painful, id. at 101:2-19. Indeed, Mr.

Charles’ ankle still prevents him from partaking in many

activities that he used to enjoy. See id. at 103-107. 2

    II.   Standard of Review

      Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted only “if the movant shows that there

is 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); Waterhouse v. District of Columbia, 298 F.3d 989, 991

(D.C. Cir. 2002). The moving party must identify “those portions

of the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which


2 Mr. Charles’ previous conditions, including his diabetes, may
have aggravated or significantly worsened his injury. See Dep.,
ECF No. 25-1 at 79:1-6 (Mr. Charles: “And the reason why the
swelling wouldn’t go down, [the doctor] said could be because of
my diabetes . . . . when you get injuries of that nature, it’s
harder to heal”).
                                 3
it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986) (quotations omitted). On the other hand, to defeat

summary judgment, the nonmoving party must demonstrate that

there is a genuine issue of material fact. Id. at 324. A

material fact is one that is capable of affecting the outcome of

the litigation, while a genuine dispute is one in which “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). Further, in the summary judgment analysis

“[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Id. at

255.

  III. Analysis

       In its motion for summary judgment, Home Depot argues that

it was not negligent as a matter of law. It contends that the

alleged hole in which Mr. Charles twisted his ankle cannot

constitute a dangerous condition because it was only about two

inches wide, two inches long, and a half-inch deep. See

generally Def.’s Mot., ECF No. 24. Mr. Charles responds by

arguing that whether the hole was a dangerous condition is a

question for the jury to resolve. See generally Pl.’s Opp’n, ECF

No. 25. He contends that the Court cannot find that the hole was

not dangerous as a matter of law. See id.

                                  4
     Under District of Columbia law, which both parties agree

applies, 3 the plaintiff in a negligence action must demonstrate

three elements: that there was “a duty of care owed by the

defendant to the plaintiff, a breach of that duty by the

defendant, and damage to the interests of the plaintiff,

proximately caused by the breach.” Girdler v. United States, 923

F. Supp. 2d 168, 187 (D.D.C. 2013)(quotations and citations

omitted). The plaintiff bears the burden of “establishing that a

violation of the reasonable standard of care is the proximate

cause of the injury sustained. The mere happening of an accident

does not meet this burden.” District of Columbia v. Cooper, 445

A.2d 652, 655 (D.C. 1982).

     Generally, a store proprietor has an “obligation of due

care to protect customers from risks created by employees or

risks created by other customers.” Hudson v. Harris Teeter, LLC,

292 F. Supp. 3d 496, 499 (D.D.C. 2018)(quoting Safeway Stores,

Inc. v. Morgan, 253 A.2d 452, 453 (D.C. 1969)). In this case,

“the burden is on the plaintiff to prove that the defendant was

negligent ‘either in creating a dangerous condition or in

allowing one to continue without correction and that this

negligence was the proximate cause of the injuries.’” Thomas v.



3 “Because this is a diversity case, the substantive tort law of
the District of Columbia controls.” Smith v. Washington Sheraton
Corp., 135 F.3d 779, 782 (D.C. Cir. 1998)(citations omitted).

                                5
Grand Hyatt Hotel, 749 F. Supp. 313, 314 (D.D.C. 1990), aff’d,

957 F.2d 912 (D.C. Cir. 1992)(quoting Paylor v. Safeway Stores,

Inc., 225 A.2d 312, 314 (D.C. 1967)). Moreover, when liability

is predicated upon the existence of a dangerous condition, as

here, “‘it is necessary to show that the party against whom

negligence is claimed had actual notice of the dangerous

condition or that the condition had existed for such length of

time that, in the exercise of reasonable care, its existence

should have become known and corrected.’” Hudson, 292 F. Supp.

3d at 499 (quoting Sullivan v. AboveNet Comm'ns, Inc., 112 A.3d

347, 356 (D.C. 2015)). Generally, whether a condition is

unreasonably dangerous or reasonably safe is a question “for the

jury.” Cooper, 445 A.2d at 655. Because “jurors are the triers

of fact,” id., “where there is evidence upon which reasonable

persons might differ as to negligence and other elements of

liability, those questions must be decided by the jury,” id.

(citations omitted)(referring to “the question of whether a

walkway is reasonably safe”).

     Home Depot argues that the critical question in this case,

whether the hole in which Mr. Charles twisted his ankle was a

dangerous condition, is not an issue for the jury because a

half-inch deep hole is not a dangerous condition as a matter of

law. See Def.’s Mot., ECF No. 24 at 4-7 (“plaintiff cannot

establish a prima facie case of premises liability because the

                                6
condition at issue was not an unsafe condition as a matter of

law”). In support of its argument, it primarily relies on three

District of Columbia Court of Appeals (“Court of Appeals”)

cases. See id. (discussing Proctor v. District of Columbia, 273

A.2d 656 (D.C. 1971); Williams v. District of Columbia, 646 A.2d

962 (D.C. 1992); and Briscoe v. District of Columbia, 62 A.3d

1275 (D.C. 2013)). In all three cases, the Court of Appeals

evaluated whether the District of Columbia was liable for

injuries caused by minor defects on public sidewalks. In each,

the Court of Appeals founds that the protrusions, which ranged

from a quarter-inch to an inch deep, were not dangerous

conditions as a matter of law. In so concluding, the Court of

Appeals recognized “what pedestrians living in urban areas know

from their own experience: namely, that minor sidewalk

elevations are not an unusual condition for city sidewalks and

are in fact what might be called a very prevalent condition.”

Proctor, 273 A.2d at 658. Because it is “impossible to maintain

a sidewalk in perfect condition[,] [m]inor defects are bound to

exist.” Id. ((quoting Barrett v. City of Claremont, 41 Cal. 2d

70, 73 (1953)). Accordingly, the Court of Appeals held that “[a]

municipality cannot be expected to maintain the surface of its

sidewalks free from all inequalities and from every possible

obstruction to travel. Minor defects due to continued use, or

action of the elements, or other cause, will not necessarily

                                7
make the city liable for injuries caused thereby.” Id. (quoting

Barrett, 41 Cal. 2d at 73). Applying this logic, the Court of

Appeals has consistently held that the District of Columbia

cannot be liable for injuries caused by de minimis defects on

public sidewalks. See Briscoe, 62 A.3d at 1278-79 (discussing

Proctor, 273 A.2d at 658 and Williams, 46 A.2d at 963).

     These cases, however, are not directly on point—they all

involve municipality liability and public sidewalks. In each

case, the Court of Appeals stressed that the protrusions existed

on public sidewalks, where minor defects are “bound to exist.”

Proctor, 273 A.2d at 658. Home Depot has not explained whether

or why such defects are also “bound to exist” in retail stores,

which are presumably less traveled and not exposed to the same

elements. See generally Def.’s Mot., ECF No. 24; Def.’s Reply,

ECF No. 26. Home Depot has also not addressed the fact that

customers’ expectations of retail store conditions likely are

different from their expectations of public sidewalk conditions,

based on their experiences. See generally Def.’s Mot., ECF No.

24; Def.’s Reply, ECF No. 26; see also Proctor, 273 A.2d at 658

(taking into consideration pedestrians’ expectations of city

sidewalks based on their experiences).

     Instead, Home Depot argues that there is no legal

distinction between a de minimis defect in a store and one on

the public sidewalk. Def.’s Reply, ECF No. 26 at 2. It contends

                                8
that the Court of Appeals did not base the Proctor, Briscoe, and

Williams decisions on the fact that “variations in sidewalks are

prevalent.” Id. The Court disagrees. The fact that the slight

variations were “prevalent” and “minor defects are bound to

exist” on public sidewalks were considerations central to the

Court of Appeals’ decisions. Proctor, 273 A.2d at 658. In all

three cases, the Court of Appeals stressed that public sidewalks

were “impossible to maintain,” and, as such, municipalities

should not be held liable for trivial defects. See, e.g., id.

Indeed, all the cases relied upon in Proctor also involved

municipal liability for slight defects on public sidewalks. See

id. at 658-59 (discussing and citing Barrett v. City of

Claremont, 41 Cal. 2d 70, 73 (1953); Kimball v. City of

Cincinnati, 160 Ohio St. 370, 374 (1953); City of Memphis v.

McCrady, 174 Tenn. 162, 164 (1938); Ness v. City of San Diego,

144 Cal. App. 2d 668 (1956)). Thus, the Court is not persuaded

that defects in public sidewalks are indistinguishable from

defects in retail stores.

     Moreover, Home Depot has not identified, and the Court

could not locate, a case in which a minor defect in a retail

store or a private premise was found to be not dangerous as a

matter of law. See generally Def.’s Mot., ECF No. 24; Def.’s

Reply, ECF No. 26. To the contrary, in Whitehouse v. Safeway,

the Court of Appeals noted approvingly that the Superior Court

                                9
of the District of Columbia had found that the plaintiff

presented evidence sufficient to “raise a jury issue” that a

hole in the tile floor of a grocery store was a hazard. 385 A.2d

755, 755-56 (D.C. 1978)(reversing the Superior Court only to the

extent that it concluded there was no constructive notice).

Neither court focused on the size or depth of the hole. See id.

at 755-56, 756 n.1. Without any binding precedent as guidance,

the Court declines to arbitrarily determine how big a defect

must be to constitute a dangerous condition as a matter of law.

See Proctor, 273 A.2d at 658-59 (stating that the Court of

Appeals should not “get into the position of arbitrarily

determining that the maintenance of a particular defects such as

a hole of a certain depth or a raised brick protruding a certain

height above the surrounding bricks constitutes negligence. Such

questions are for the jury in light of all of the surrounding

circumstances”).

     Nevertheless, Home Depot argues that it is not “expected to

assume burdens of care which are unreasonable.” In so arguing,

it suggests that repairing the hole would have been

unreasonable. Def.’s Reply, ECF No. 26 at 4 (quoting Whitehouse,

385 A.2d at 757). However, this too is a question for the jury.

See Cooper, 445 A.2d at 660 (“Because the determination of

reasonable care depends on many factual circumstances, courts

may not establish rules denying the jury its traditional

                               10
function of determining negligence.”); see also Kindig v. Whole

Foods Mkt. Grp., Inc., 930 F. Supp. 2d 48, 51 (D.D.C.

2013)(“Supermarket slip and fall cases are exactly the type of

case within the province of a jury because . . . grocers have a

duty to take reasonable precautions to maintain the store

premises in a condition so as not to create an unreasonable risk

of harm to customers.”)(quotations and citations omitted).

     Having rejected Home Depot’s argument, the Court finds that

Mr. Charles otherwise established his negligence claim. For

example, neither party disputes that the hole caused Mr.

Charles’ injury. Home Depot agrees that he twisted his ankle

when he stepped in the half-inch deep hole. See Def.’s Reply to

Counter-Stmt. of Material Facts, ECF No. 26-3 ¶¶ 1-3; Dep., ECF

No. 25-1 at 31:9-32:7. Viewing the evidence in the light most

favorable to Mr. Charles, the Court concludes there is

sufficient evidence from which a reasonable person could find

that the hole was a dangerous condition and caused his injury.

See Cooper, 445 A.2d at 655 (“the law does not require proof of

negligence to a certainty. Rather, the law requires only that

the evidence, when viewed most favorably for the plaintiff,

indicate a reasonable probability of negligence on the part of

the defendant”)(quoting Rich v. District of Columbia, 410 A.2d

528, 532 (D.C. 1979)).



                               11
     Moreover, Home Depot does not argue that it lacked

knowledge or notice of the hole prior to Mr. Charles’ injury.

See generally Def.’s Mot., ECF No. 24; Def.’s Reply, ECF No. 26.

Viewing the evidence in the light most favorable to Mr. Charles,

a reasonable juror could conclude that Home Depot knew or had

constructive knowledge about the condition. Mr. Charles

testified that the Home Depot manager said, after Mr. Charles

showed him the hole, “I told them” while apologizing. Dep., ECF

No. 25-1 at 36:2-23. Indeed, this fact has not been controverted

in the record. See Nunyi Aff., ECF No. 26-1 (Home Depot manager

stating that he had no recollection of putting a caution sign

near the hole, but not denying that he said something like “I

told them” after viewing the hole).

  IV.   Conclusion and Order

     Because the Court cannot agree that a half-inch deep hole

is not a dangerous condition as a matter of law, and because Mr.

Charles presented sufficient evidence such that a reasonable

jury could conclude that his injury was caused by a dangerous

condition of which Home Depot had prior knowledge, the Court

must DENY Home Depot’s motion for summary judgment.




                               12
     It is further ORDERED that the parties shall file a joint

status report with recommendations for further proceedings by no

later than February 4, 2019.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          January 3, 2019




                               13
