# Saikus v. Costco Wholesale Corporation

> District Court, N.D. Ohio · November 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10368961

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** November 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RIMANTAS SAIKUS, ) CASE NO. 1:19CV97
)
Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO
)
vs. ) OPINION AND ORDER
)
COSTCO WHOLESALE CORP., et al., )
)
Defendants. )
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Magistrate Judge’s Report &
Recommendation (ECF DKT #36), recommending granting the Motion (ECF DKT #29) of
Defendant Costco Wholesale Corporation for Summary Judgment and denying the Motion
(ECF DKT #30) of Plaintiff Rimantas Saikus Seeking Other Remedies. For the following
reasons, the Court adopts the Report & Recommendation, grants judgment in favor of
Defendant on Counts I, III and IV of Plaintiff’s Amended Complaint and denies Plaintiff’s
request for other remedies.
I. BACKGROUND
Plaintiff originally filed this case in Cuyahoga County Common Pleas Court on
December 21, 2018, for injuries sustained when an unknown customer allegedly drove a
Costco motorized cart into Plaintiff’s leg. According to the Amended Complaint, Plaintiff
was at the photo counter inside the Mayfield Heights, Ohio Costco location on May 31, 2015.
Defendant John Doe was driving a motorized shopping cart provided by Costco when he

struck Plaintiff, causing lacerations to Plaintiff’s leg and other injuries.
Plaintiff filed the Amended Complaint on January 7, 2019, asserting claims against
Defendant Costco for Premises Liability, Negligence, Negligent Entrustment and Punitive
Damages. (Counts I, III and IV). Count II asserts a Negligence claim against the John Doe
customer.
On January 14, 2019, the captioned case was removed to federal court based upon
diversity jurisdiction. Plaintiff is a resident of Ohio; and the only Defendant served in this
matter is Defendant Costco, which has its principal place of business in the State of
Washington.

Discovery closed on December 15, 2019, following a 90-day extension of the
discovery deadline.
Plaintiff’s attorney, Thomas Wilson, withdrew from the case on October 8, 2019.
Since that time, Plaintiff has proceeded pro se.
Defendant Costco filed a Motion for Summary Judgment on January 24, 2020.
Plaintiff filed a Motion Opposing Granting Defendant’s Dispositive Motion and Requesting
Granting Other Remedies for Plaintiff on February 21, 2020. Defendant’s Reply Brief was
filed on March 6, 2020.

The Magistrate Judge issued a Report & Recommendation on Defendant’s Motion for
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Summary Judgment on April 6, 2020, and required Objections to be filed within 14 days after
the objecting party has been served. No timely Objections were filed nor was any request
made for an extension of time to do so. However, on May 7, 2020, well beyond the objection
deadline, Plaintiff filed a document captioned: “Motion to Suspend Decision on Defendant’s

Costco [sic] Motion for Summary Judgment.”
II. LAW AND ANALYSIS
Standard of Review
Pursuant to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(c), the District Court shall
review de novo any finding or recommendation of the Magistrate’s Report and
Recommendation to which specific objection is made. A party who fails to file an objection
waives the right to appeal. U.S. v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). In Thomas v.
Arn, 474 U.S. 140, 150 (1985), the Supreme Court held: “It does not appear that Congress

intended to require district court review of a magistrate judge’s factual or legal conclusions,
under a de novo or any other standard, when neither party objects to those findings.”
Local Rule 72.3(b) recites in pertinent part:
The District Judge to whom the case was assigned shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
Magistrate Judge.
Put another way, 28 U.S.C. § 636(b) and Local Rule 72.3 authorize the district court
judge to address objections by conducting a de novo review of relevant evidence in the record
before the magistrate judge. Parties are not permitted at the district court stage to raise new
arguments or issues that were not presented to the magistrate. Murr v. United States, 200
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F.3d 895, 902 n.1 (6th Cir. 2000), citing United States v. Waters, 158 F.3d 933 (6th Cir.
1998).
Motion for Summary Judgment
Summary judgment shall 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.” See Fed.R.Civ.P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A court
considering a motion for summary judgment must view the facts and all inferences in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but must come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at
1347.
This Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F.3d 1079, 1087 (6th Cir.

1996); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992). The
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burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party
fails to make the necessary showing on an element upon which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary

judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distributors Benefits Ass 'n v. Northfield Ins. Co., 323
F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
Diversity Jurisdiction and Applicable Law
Plaintiff contends that the Court does not need to follow Ohio law. (ECF DKT #30 at
6). However, Plaintiff is incorrect.
The jurisdiction of the Court over this matter is based on the diversity of the parties

pursuant to 28 U.S.C. § 1332. A federal court sitting in diversity must apply the substantive
law of the state in which it sits. Phelps v. McClellan, 30 F.3d 658, 661 (6th Cir.1994) (citing
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). It is a well-settled principle
that in a diversity case a federal court must apply the state law as expressed by the highest
court of the state. Clutter v. Johns Manville Sales Corp., 646 F.2d 1151, 1153 (6th Cir.
1981).
Negligence
In order to establish an actionable claim of negligence, a plaintiff must show the
existence of a duty, a breach of that duty, and an injury that was proximately caused by the

breach. Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981). A plaintiff must produce
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some evidence for each element essential to establish liability. Strother, id. The element of
causation is ordinarily a question of fact for the jury; however, before the question may be
submitted to the jury, a plaintiff must present some evidence of causation. Renfroe v. Ashley,
167 Ohio St. 472 (1958).

Premises Liability
In Count I of his Amended Complaint, Plaintiff alleges premises liability against
Defendant Costco based upon his status as a business invitee. (ECF DKT #1-2, ¶¶ 13-15).
“A shopkeeper ordinarily owes its business invitees a duty of ordinary care in maintaining the
premises in a reasonably safe condition and has the duty to warn its invitees of latent or
hidden dangers.” Armstrong v. Best Buy Co., Inc., 99 Ohio St. 3d 79, 80 (2003).
Plaintiff alleges that Defendant Costco owed a “duty to exercise ordinary care to
maintain its premises in a reasonably safe condition for the protection of business invitees

such as Plaintiff Saikus.” (Id. at ¶ 15). Plaintiff specifically alleges that “[a]s a direct and
proximate result of Costco’s negligent failure to provide proper and adequate instructions
and/or training to Costco customers of the proper and safe use of the Costco motorized
grocery cart, at the Mayfield Hts. Costco, Plaintiff Saikus was harmed.” (Id. at ¶ 27).
Plaintiff has failed to present any evidence that Costco’s alleged lack of instruction
and training was the cause of the accident in which he was injured. In Rieger v. Giant Eagle,
Inc., 157 Ohio St. 3d 512 (2019), a Giant Eagle shopper operating a motorized cart ran into
and injured another shopper. The Ohio Supreme Court concluded that the plaintiff presented
no evidence of the causation element of a negligence cause of action and therefore, could not

prevail. The Rieger court instructed as follows at 516:
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Causation is established using the “but for” test. Anderson v. St. Francis-St.
George Hosp., Inc., 77 Ohio St.3d 82, 84-85, 671 N.E.2d 225 (1996). A
defendant's conduct is the cause of the harm if the harm would not have
occurred but for the defendant's act or failure to act. Id.; see also Renfroe at
475, 150 N.E.2d 50; Strother, 67 Ohio St.2d at 287, 423 N.E.2d 467. It is not
enough for the plaintiff to assert or speculate that the defendant's actions or
failure to act might have caused the injury. Gedra v. Dallmer Co., 153 Ohio
St. 258, 91 N.E.2d 256 (1950), paragraph two of the syllabus; accord Krupar
v. Procter & Gamble Co., 160 Ohio St. 489, 117 N.E.2d 7 (1954), paragraph
two of the syllabus. There must be evidence of causation before the plaintiff's
negligence claim may be submitted to the jury. Johnson v. Wal-Mart Stores
E., L.P., 2014-Ohio-2998, 12 N.E.3d 1262, ¶ 24 (2d Dist.).
Like the plaintiff in Rieger, Plaintiff Saikus only speculates that but for Costco’s
failure to instruct or train on cart operation, his injuries would not have occurred. Plaintiff
does not know who the driver of the motorized cart was, nor does he know whether John Doe
driver was skilled in operating motorized shopping carts.
The Ohio Supreme Court further emphasized that without “evidence of causation, [it
is] not necessary to decide whether [Plaintiff] presented sufficient evidence establishing the
existence of a duty, the breach of that duty, or damages.” Rieger, 157 Ohio St.3d at 517.
Plaintiff Saikus can no longer rely on his pleadings alone; and the lack of any
evidence of causation, beyond pure speculation, cannot create a genuine issue of material fact
sufficient to defeat summary judgment on his Premises Liability claim in Count I of the
Amended Complaint.
Negligent Entrustment
In Count III of the Amended Complaint, Plaintiff alleges that “[a]s a direct and
proximate result of the negligent entrustment of the operation of a motorized grocery cart by
Costco, Plaintiff Saikus was struck and sustained injuries.” (ECF DKT #1-2, ¶ 35). “Costco
knew, either through actual knowledge or through knowledge implied from known facts and
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circumstances, that by permitting and/or entrusting the operation of a motorized grocery cart
to an inexperienced or incompetent operator, such as John Doe, that injury to innocent third
parties would be [sic] foreseeable result of such negligent entrustment.” (Id. at ¶ 34).
In Ohio, “[i]t is a well settled rule of law that the owner of a motor vehicle may be

held liable for an injury to a third person resulting from the operation of the vehicle by an
inexperienced or incompetent driver, upon the ground of negligence, if the owner knowingly,
either through actual knowledge or through knowledge implied from known facts and
circumstances, entrusts its operation to such a driver. Gulla v. Straus, 154 Ohio St. 193,198
(1950).
Negligent entrustment liability “is generally confined to cases where [the owner]
entrusts his motor vehicle to one whose appearance or conduct is such as to indicate his
incompetency or inability to operate the vehicle with due care.” Grieser v. Montgomery, No.
3:11CV587, 2012 WL 1906379, at *5 (N.D.Ohio, May 25, 2012), quoting Gulla, 154 Ohio

St. at 199.
Once again, the Court notes that Plaintiff has not identified John Doe Defendant who
is alleged to have been operating the motorized cart that struck him in the Mayfield Heights
Costco store. Plaintiff muses that “an individual requiring a Handicap Equipped Powered
Shopping Cart had substantial and compromised health issues.” (ECF DKT #44 at 4). Since
the identity of John Doe Defendant is unknown, Plaintiff can provide no evidence of John
Doe’s skill, or lack thereof, in operating motorized carts. Plaintiff cannot establish any
impairments John Doe has, nor support his speculation that John Doe has “substantial and

compromised health issues.” Thus, Plaintiff cannot offer any evidence to establish
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Defendant’s actual or implied knowledge, so as to show Defendant’s negligent entrustment of
its motorized cart to John Doe proximately caused Plaintiff’s damages.
Although there has been no timely objection lodged by Plaintiff, upon de novo review,
the Court agrees with the Magistrate Judge’s recommendation that Plaintiff cannot prevail on

Count III of his Amended Complaint for Negligent Entrustment.
Punitive Damages
“[P]unitive damages are awarded as a mere incident of the cause of action in which
they are sought. * * * Thus, compensable harm stemming from a cognizable cause of action
must be shown to exist before punitive damages can be considered.” See Moskovitz v. Mt.
Sinai Med. Ctr., 69 Ohio St.3d 638, 650 (1994). “A plaintiff must be awarded some measure
of compensatory damages to receive punitive damages.” Niskanen v. Giant Eagle, Inc., 122
Ohio St.3d 486, 489-90 (2009).

Since the Court finds that Defendant Costco is entitled to summary judgment in its
favor on Counts I and III of the Amended Complaint, punitive damages cannot be awarded to
Plaintiff on Count IV.
Defective Design
“It is well established that a party forfeits any issue he did not actually present to a
magistrate judge in the first instance and then raises the issue for the first time in objections to
the magistrate judge's report and recommendation.” AES-Apex Employer Servs., Inc. v.
Rotondo, 924 F.3d 857, 867 (6th Cir. 2019) (citation omitted); Murr, 200 F.3d at 902 n.1.
In the Motion to Suspend Decision (ECF DKT #40) filed a month after the Magistrate

Judge’s Report & Recommendation, Plaintiff argues, for the first time, a claim against
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Defendant for Defective Design. Plaintiff asserts that “Defendant Costco was negligent in
that it provided a dangerous poorly designed Handicap Equipped Powered Shopping Cart that
was a danger to its employees and in turn its customers, its lower bumper actually augmented
the extent of the injury.” (Id. at 2).

Plaintiff also directs the Court’s attention to ¶ 19 of Count I of the Amended
Complaint, which states in its entirety: “Upon information and belief and at all times relevant
hereto, Costco negligently provided unsafe and inadequate motorized grocery carts to its
customers.” This allegation in the Amended Complaint is “bare-bones” and provides no facts
to support a plausible claim for design defect against Defendant. Moreover, Plaintiff can no
longer rest on his pleadings.
When faced with Defendant’s Motion for Summary Judgment, Plaintiff failed to argue
this claim in his Opposition Brief (ECF DKT #30). “[A] plaintiff is deemed to have
abandoned a claim when a plaintiff fails to address it in response to a motion for summary

judgment.” Brown v. VHS of Michigan, Inc., 545 F. App'x 368, 372 (6th Cir. 2013) (citing
Hicks v. Concorde Career Coll., 449 F. App'x 484, 487 (6th Cir. 2011), Clark v. City of
Dublin, 178 F. App'x 522, 524-25 (6th Cir. 2006), and Conner v. Hardee's Food Sys., 65 F.
App'x 19, 24-25 (6th Cir. 2003)).
On May 29, 2020, Plaintiff filed a Motion (ECF DKT #44) to Deny Defendant
Costco’s Motion for Summary Judgment. At this late juncture, Plaintiff offers his affidavit
and photographs purporting to demonstrate the hazardous design of Costco’s motorized carts
as opposed to those offered by other retailers. Plaintiff is not an expert and his opinion on

motorized cart design cannot be given any weight.
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Even if the Court were to treat Plaintiff’s Defective Design claim as not abandoned,
the claim still fails. It is mere speculation that the unsafe design of the motorized grocery cart
caused Plaintiff’s injury. Plaintiff’s claim is defeated for failure to provide evidence to
establish causation, a necessary element upon which he has the burden of proof. Rieger,

supra.
III.CONCLUSION
“Although [Saikus] is [now] a pro se litigant, and we have a corresponding duty to
accord him ‘the benefit of a liberal construction of [his] pleadings and filings, Boswell v.
Mayer, 169 F.3d 384, 387 (6th Cir. 1999), ‘pro se plaintiffs are not automatically entitled to
take every case to trial ... [and] the lenient treatment generally accorded to pro se litigants has
limits.’ Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).” Farah v. Wellington, 295 F.
App’x. 743, 748 (6th Cir. 2008) (alterations added).

For all the foregoing reasons, the Court adopts the Magistrate Judge’s Report &
Recommendation (ECF DKT #36), recommending granting the Motion (ECF DKT #29) of
Defendant Costco Wholesale Corporation for Summary Judgment and denying the Motion
(ECF DKT #30) of Plaintiff Rimantas Saikus Seeking Other Remedies. Therefore, the Court
grants judgment in favor of Defendant on Counts I, III and IV of Plaintiff’s Amended
Complaint and denies Plaintiff’s request for other remedies.
IT IS SO ORDERED.
DATE: November 18, 2020
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10368961. Public record. Not legal advice.