Less Is (Not) Moritz: Why Plaintiffs Probably Have to Show More to Establish Unreasonable Risk of Harm Post-Johnson v. Liquor and Cannabis Board, As Seen in the Case of Moritz v. Wal-Mart, Inc.
Wednesday, September 20, 2023
by: Eddy Silverman, Williams Kastner

Section: Summer 2023

On July 25, 2023, United States Magistrate Judge Theresa L. Fricke granted summary judgment in favor of Walmart in the matter of Moritz v. Wal-Mart, Inc. (Case No. 3:22-cv-5595-TLF).  While this fact in and of itself is neither remarkable or unusual for me or my firm (*clears throat, brushes off both shoulders*), a closer look at the Order granting summary judgment reveals something that is a little more novel and perhaps a little more useful to my colleagues in the defense bar.  In granting summary judgment and denying the plaintiff’s Cross-Motion to Compel additional discovery, Judge Fricke cited to and relied on Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 611 (2021), and the more helpful (unpublished) Court of Appeals decision, 21 Wn. App. 2d 1041 (2022), review denied, 200 Wn.2d 1029 (2023), and embraced a truism at the heart of those decisions: without unreasonable danger or risk of harm, there can be no premises liability.  And because this is true, in premises liability cases, other ancillary-alleged negligence—something like an allegedly “defective floor and safety plan”—is not relevant, or case-saving, in the face of a summary judgment motion.  In other words, in cases where the plaintiff “has not provided evidence that there was an unreasonably dangerous condition present to begin with,” the Court should (a) grant summary judgment in favor of the defendant, and (b) should not be swayed or deterred by the all-too-common plaintiff’s tactic of, ‘Hey, look at all these other things the defendant was doing wrong….’  See Order Granting Defendant’s Motion for Summary Judgment, and Denying Plaintiff’s Motion to Compel (Case 3:22-cv-05595-TLF, at Dkt. #30).  

To my mind, the post-verdict dismissal of Johnson by the Court of Appeals earlier this year, and the summary judgment Order in Moritz, are something of a response to the concerns of the defense bar raised in Johnson v. Liquor & Cannabis Bd., 197 Wn.2d 605, 618-19 (2021), articulated in amicus briefing filed in that case “raising the specter of vastly increased liability.”  Favorable defense decisions like these purport to represent the manifestation of assurances from The Supreme Court of Washington in Johnson that “Proof of a dangerous condition remains an element of a premises liability claim”—by all accounts a renewed or reaffirmed element, ostensibly filling the hole left by the largescale abrogation of the notice requirement.  Of course, the irony is that this would be a renewal founded simply on words like “unreasonable” carrying their plain meaning. Indeed, the standard for premises liability is not, and never has been, zero danger.  The standard is not zero risk, or no risk of harm.  The standard is, and always has been, unreasonable danger, and certainly something like the little bit of water on the floor in Johnson, or the nothing at all on the floor in Moritz, those things are not going to qualify—at least they should not, particularly not post-Johnson.  That’s the argument.  

Whether the renewal is real, so to speak, remains to be seen.  So far, the Courts’ embrace of our “no unreasonably dangerous condition” argument has been inconsistent, and predictably better in federal court—like in Moritz, which unfortunately is not going to lead to any favorable published authority, as our adversaries there have elected not to appeal that decision (possibly for fear of making bad plaintiff’s law).