Phan v. Costco Wholesale Corporation

Background

Ryan Phan sued Costco Wholesale Corporation after slipping and falling while filling his car with gasoline at a Costco gas station in San Leandro, California, on October 15, 2017. The parties agreed about when the incident occurred but disputed what caused the fall.

Phan testified that he slipped on wet paint. Three family members who were present provided circumstantial evidence supporting that account: they said they saw paint on Phan’s shoe, saw paint footprints on the ground, heard a Costco employee say the area had just been painted, and saw Costco employees cleaning the area—including scooping up paint—before taking photographs or calling an ambulance.

Costco argued that this testimony should not be considered because the witnesses did not see Phan fall and were not independent witnesses. Costco also relied on a paramedic’s report and notes from Phan’s primary care physician, both of which stated that Phan had slipped on gas. Phan responded that his strong accent may have caused confusion.

Court’s analysis

The court applied the summary-judgment standard, under which judgment may be entered without a trial only when there is no genuine dispute about a fact that could affect the outcome and the moving party is entitled to judgment as a matter of law. When evidence genuinely conflicts, such as through conflicting testimony, the issue is generally for a jury rather than the court at summary judgment.

The court found that important questions remained. A video that could have shown the cause of the fall had disappeared. Costco said it used one painting subcontractor and that painting occurred about once every 18 months, but it did not produce business records showing the subcontractor’s work before or after the incident. The court also found that Phan’s family members’ sworn testimony was relevant circumstantial evidence. Whether the witnesses were biased or believable was for the jury to assess, and the court found no basis at summary judgment to exclude their testimony.

The court ruled that Phan’s statements to medical professionals about the cause of the fall were admissible as party admissions under Federal Rule of Evidence 801(d)(2), overruling objections to that evidence. The court found most of the parties’ other scene and painting-practice testimony admissible as relevant circumstantial evidence with an adequate foundation. It struck Lorenzo Resendiz’s statement about the date of the station’s prior painting because it conflicted with the attached invoice, and struck portions of Phan’s declaration suggesting that Costco employees told paramedics a gasoline spill caused the fall because that statement was speculative.

Ruling and effect

The court denied Costco’s motion for summary judgment. It stated that the case should be resolved by a jury because the remaining factual disputes and potential bias on both sides made credibility assessment necessary. The court referred the case to Magistrate Judge Sallie Kim for a settlement conference and noted that the scheduled February trial date might not be maintained because of COVID-19 and the backlog of jury trials. Costco’s request for judicial notice was denied as moot, and the order terminated Docket Number 36.