Date: 05-09-2018

Case Style:

Case Number: 6:17-cv-01094-JR

Judge: Jolie A. Russo

Court: United States District Court for the District of Oregon (Lane County)

Plaintiff's Attorney: Don Carson and Derek Larwick

Defendant's Attorney: Nancy M. Erfle, Nancy M. Erfle and Nancy M. Erfle

Description: Eugene, OR - Jennifer Wheeler sued Safeway, Inc. on a personal injury negligence theory.

The Complaint filed by Ms. Wheeler stated in part:

For Plaintiff Jenna Wheeler’s claims for relief against Defendant Safeway, Inc., Plaintiff states:
Parties
1.

Defendant Safeway, Inc., is a foreign corporation incorporated in Delaware and with its principal place of business in California. Defendant Safeway, Inc., is a multinational for-profit corporation in the business of marketing, distributing, merchandizing, and selling consumer products. Defendants Safeway, Inc., operates more than approximately 1,500 stores and parking lots throughout North America. Defendant Safeway holds itself out to the community as providing safe store premises and parking lots for consumers throughout Oregon.
2.

Plaintiff Jennifer (“Jenna”) Wheeler is a citizen and resident of the State of Oregon.


Jurisdiction and Venue
3.

This Court has jurisdiction of this action pursuant to diversity of parties as provided by 28 U.S.C. § 1332. The parties are citizens of different states, and the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs.
4.

Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claim occurred in this judicial district.
Claim for relief –
unreasonably dangerous premises
5.

At all material times, Defendant Safeway, Inc., acted through its employee agents who were acting within their authority and course and scope of employment, or non-employee agents, whose conduct was on behalf of, authorized by, and subject to the control of Defendant Safeway in a manner similar to how Defendant Safeway controlled its employees and agents engaged in similar work.
6.

At all material times, the actions of Defendant Safeway’s officers, agents, and employees were the acts of Defendant Safeway, Inc. Similarly, at all material times, the knowledge of Defendant Safeway’s officers, agents, and employees was the knowledge of Defendant Safeway, Inc.
7.

At all material times, Plaintiff Jennifer (“Jenna”) Wheeler and her sons, Chance (then age 7) and Tristan (then age 11), were invitees to Safeway, Inc.’s business premises, located at 1755 Pacific Hwy W, Junction City, Oregon. Those premises included a Safeway store and its adjacent parking lot. Defendant Safeway, Inc., invited Jenna Wheeler and her sons to enter and remain on the premises as members of the public for the purposes for which the Safeway store and surrounding land was held open to the public. Defendant Safeway, Inc., was and is in the business of inviting persons, including Jenna Wheeler and her sons, to its premises and it had an economic interest in the presence of those invitees.
8.

As the possessor of the premises, Defendant Safeway, Inc., had a duty to make the premises reasonably safe for invited persons on the premises, including Jenna Wheeler and her sons. Defendant Safeway was required to exercise reasonable care to discover any condition that created an unreasonable risk of harm to invitees, including Jenna Wheeler or her sons, and either eliminate that condition or warn Jenna Wheeler and her sons and others of the danger so they could avoid the harm.
9.

At all material times, Defendant Safeway’s parking lot at 1755 Pacific Highway W, Junction City, Oregon, had an entrance/exit on the north side of the parking lot and an entrance/exit on the south side of the parking lot. On July 18, 2015, Defendant Safeway closed the south entrance/exit of its parking lot in conjunction with an annual truck show event in Junction City.
10.

Because the south entrance/exit of the Safeway parking lot was closed during the afternoon of July 18, 2015, increased automobile traffic used the north entrance/exit.
11.

On information and belief, Safeway did not provide any person to manage traffic at the Safeway parking lot on July 18, 2015.
12.

At all material times, Defendant Safeway had provided a raised pedestrian refuge area on the western end of the northernmost lane of travel in its described parking lot. The pedestrian refuge area that Defendant Safeway provided to invitees was surrounded by a painted yellow raised curb and contained bark chips and sparse vegetation that reasonably appeared to be a safe place for pedestrians to avoid the motor vehicles using the Safeway parking lot.
13.

On or about the afternoon of July 18, 2015, Jenna Wheeler and her sons walked from their parked car toward the entrance of the Safeway store with the intent to purchase goods from Defendant Safeway, Inc. Jenna Wheeler needed to obtain an item from her car, and her seven-year-old son, Chance, waited close by in the described pedestrian refuge island, where he sat down.
14.

To maintain his own safety and to protect himself from vehicles in the parking lot, Chance remained in the elevated and yellow-marked pedestrian refuge area rather than the asphalt areas where vehicles were expected to travel.
15.

At the same time, another customer of Defendant Safeway, Inc. drove a pickup truck west in the described Safeway parking lot, toward the north exit. The truck stopped in accordance with the white line on the pavement that Defendant Safeway had provided. The truck then turned right from near the white stop line to head toward the exit of the Safeway parking lot. The white stop line was not aligned with the curb of the pedestrian refuge area to the right of the Safeway customer’s truck, and the truck accidentally went over the curb and into the pedestrian refuge area where Chance was located, running Chance over and causing his death.
16.

In an attempt to save her son Chance, Jenna Wheeler dived into the pedestrian refuge area, causing injuries to her knees. Jenna perceived the events that caused the death of her son as they occurred. She was unable to save Chance, who died in her presence.
17.

The configuration of Defendant Safeway, Inc.’s parking lot was unreasonably dangerous. Defendant Safeway, Inc. knew, or as the owner and operator of the premises, should have known of the dangerous condition. Defendants Safeway, Inc. reasonably could have prevented harm to Jenna Wheeler and her sons by modifying the condition so that it was no longer dangerous or by or warning customers to avoid using the pedestrian safety refuge area that Defendant Safeway, Inc. had provided. Defendant Safeway, Inc., instead chose not to modify the dangerous condition and not to warn its customers or their families of the danger it had created.

18.

Defendant Safeway, Inc., acting through its agents and employees within the scope of their agency or employment, was negligent in one or more of the following ways:

(a) In choosing not to make its parking lot was reasonably safe for its customers and their families;

(b) In choosing not to place a physical barrier or obstacle to prevent automobiles from driving over the corner of the pedestrian refuge area;

(c) In placing and/or maintaining a white stop line that was not properly aligned with the edge of the pedestrian refuge area;

(d) In choosing to keep profits rather than pay for safety improvements or appropriate repairs to its parking lot;

(e) In choosing not to warn its customers and their families of the danger;

(f) In choosing not to implement and enforce policies to make its parking lot safe for its customers and their families;

(g) In closing the south entrance/exit of the described parking lot and thereby increasing the automobile and pedestrian traffic near the north entrance/exit of the parking lot, without properly directing automobile and pedestrian traffic near the north entrance/exit;

(h) In choosing not to properly train, supervise, and monitor its officers, employees, agents, and independent contractors; and

(i) In failing to provide adequate safe walking routes for its customers between its parking lot and its store.
19.

Defendant Safeway, Inc., as a multinational retail chain with approximately 1,500 stores and parking lots throughout North America knew, or in the exercise of reasonable care should have known, that each of the negligent acts or omissions described above would create a foreseeable, unreasonable risk of harm to its customers shopping with families, including Plaintiff Jenna Wheeler.
20.

The negligence of Defendant Safeway, Inc., in one or more of the ways described above was a substantial factor in causing Plaintiff Jenna Wheeler to suffer physical injuries and extreme emotional distress, which has caused and which will continue to cause fear, pain, distress, discomfort, disability, loss of sleep, anxiety, depression, interference with normal life activities, and loss of enjoyment of life, all to her human, non-economic losses in an amount to be determined by the jury in accordance with the law, not to exceed $1,560,000.
21.

At the time of the incident described in this complaint, Jenna Wheeler was 48 years old, and she had a reasonable life expectancy of an additional 38 years.
Prayer FOR RELIEF

WHEREFORE, Plaintiff Jenna Wheeler prays for judgment against Defendant Safeway, Inc.,

(a) For Jenna Wheeler’s human, non-economic damages in an amount to be determined by the jury in accordance with the law, not to exceed $1,560,000;

(b) For the costs and disbursements that she has incurred in this action.

Outcome: Judgment. This action is dismissed with prejudice and without costs to either party. Signed on 5/9/2018 by the Clerk. (jk) (Entered: 05/09/2018)

Plaintiff's Experts:

Defendant's Experts:

Comments: