                                                                          FILED
                            NOT FOR PUBLICATION
                                                                          DEC 18 2018
                     UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


                                                NO. 17-35965
JUDITH PLUNKETT                                 D.C. No. 3:16-cv-05832-DWC
              Plaintiff-Appellant,              MEMORANDUM*
      vs.

BEST BUY, INC.
                   Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                  David W. Christel, Magistrate Judge, Presiding

                           Submitted December 6, 2018**
                               Seattle, Washington

Before: FLETCHER and BYBEE, Circuit Judges, and BURNS,*** District Judge.




      *
        This disposition is not appropriate for publication and may not be cited to or
by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for disposition
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
         The Honorable Larry Alan Burns, United States District Judge for the
Southern District of California, sitting by designation.



                                          1
      Judith Plunkett appeals the district court’s grant of summary judgment in this

premises liability action. The parties are familiar with the facts, so we don’t recite

them. This Court has jurisdiction under 28 U.S.C. ' 1291, and we affirm.

      The district court properly granted summary judgment after it correctly

determined that the shopping carts in the aisle did not constitute an unreasonable

risk. See Iwai v. Emp’t Sec. Dep’t, 915 P.2d 1089, 1093 (Wash. 1996) (holding

that, under Washington law, a land possessor is liable to an invitee if “a condition

on the land . . . involves an unreasonable risk of harm”). Because the position of

the shopping carts did not pose an unreasonable risk, it was immaterial whether the

risk was the result of active or passive negligence.

      The district court did not abuse its discretion in excluding the testimony of

Plunkett’s “human factors” expert. The court correctly determined that the expert’s

opinions would not assist the trier of fact and were based on speculation. See Fed.

R. Evid. 702.

      AFFIRMED.




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