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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

ALYENE L. ENGLISH,

Plaintiff,

v.

SAFEWAY, INC.,

Defendant.

No. 22-cv-3607 (DLF)

ORDER

Alyene L. English slipped and fell while grocery shopping. She sued Safeway, Inc. for 

negligence. Before the Court is Safeway’s Motion for Summary Judgment. Dkt. 8. For the 

reasons that follow, the Court will deny the motion.

In 2019, English and her sister Nedra English (Nedra) entered a Safeway grocery store in 

Washington, DC.1 Def.’s Statement of Undisputed Material Facts ¶¶ 1–2, Dkt. 8-2; Pl.’s CounterStatement to Def.’s Statement ¶¶ 1–2, Dkt. 11. The pair split up, and Nedra—in her telling—

spotted “something on the floor” that “looked like [chicken] fat.” Dep. of Nedra English at 24:4–

6, 27:16–17 (“Nedra Tr.”), Dkt. 8-6. She told a Safeway employee near the store’s salad bar about 

the problem and then walked to the Safeway deli counter, where she waited for “about 10 to 15 

minutes.” Id. at 24:14–18, 27:1–3. While waiting, Nedra told an employee behind the deli counter 

about the potential spill as well. Id. at 24:14–18.

1 Consistent with the applicable legal standard, the Court recounts the facts of the case “in the 

light most favorable to the nonmoving party.” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 

2011). For purposes of summary judgment, the parties agree on every relevant fact save one—

whether English’s sister spotted the spill on the floor and told Safeway employees about it. 

Compare Pl.’s Opp’n to Def. Safeway’s Mot. for Summ. J. at 1–2, Dkt. 11, with Def. Safeway, 

Inc.’s Mem. in Supp. of Summ. J. at 13–18 (“Safeway’s Mot.”), Dkt. 8-1. 
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English met Nedra at the deli counter and then walked away. Dep. of Alyene English at 

81:8–20 (“English Tr.”), Dkt. 8-5. She slipped and fell on the spill her sister (allegedly) pointed 

out, injuring herself. Id. at 91:1–12. This lawsuit followed.

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate 

if the moving party “shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby 

Inc., 477 U.S. 242, 247–48 (1986). In reviewing the record, the Court “must draw all reasonable 

inferences in favor of the nonmoving party, and it may not make credibility determinations or 

weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000). That said, 

“a plaintiff opposing summary judgment” must “substantiate [her allegations] with evidence” that 

“a reasonable jury could credit in support of each essential element of her claims.” Grimes v. 

District of Columbia, 794 F.3d 83, 94 (D.C. Cir. 2015).

The parties agree that D.C. law governs this dispute. See also Klaxon v. Stentor Elec. Mfg. 

Co., 313 U.S. 487, 496 (1941). In the District of Columbia, “the elements of a cause of action for 

negligence are a duty of care owed by the defendant to the plaintiff, a breach of that duty by the 

defendant, and damage to the interests of the plaintiff, proximately caused by the breach.” Woods 

v. District of Columbia, 63 A.3d 551, 553 (D.C. 2013) (alterations adopted) (quoting Taylor v. 

District of Columbia, 776 A.2d 1208, 1214 (D.C. 2001)). A grocer’s “duty is to exercise 

reasonable care to keep his place of business safe for the customer using it.” Seganish v. D.C. 

Safeway Stores, Inc., 406 F.2d 653, 655 (D.C. Cir. 1968). “[N]egligence can be found in relation 

to a customer-created hazard only if it is known, or because of its duration it should have been 

discovered, in time to afford a fair opportunity to remove it.” Id. at 656; accord Smith v. Safeway 

Stores, Inc., 298 A.2d 214, 216 (D.C. 1972).
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Drawing “all reasonable inferences” in English’s favor, the Court concludes that Safeway

is not entitled to summary judgment. Reeves, 530 U.S. at 150. A jury could find that Nedra saw 

spilled grease on the floor, that she told Safeway employees about it, and that the employees did 

nothing about the hazard for more than ten minutes. Reasonable jurors could think that this 

behavior breached Safeway’s duty to “keep [its] place of business safe for [English].” Seganish,

406 F.2d at 655; see, e.g., Hines v. Safeway Stores, 379 A.2d 1174, 1175 (D.C. 1978) (explaining 

that negligence is “peculiarly within the province of juries” and declining to set aside a jury’s 

conclusion that a store’s failure to clean a large puddle after twenty minutes was negligent, even 

without evidence that the store knew about the puddle). So too, they could infer that Safeway’s 

breach caused English’s fall and injuries.

Safeway replies that English has not provided expert testimony on the applicable standard 

of care, that the “sham affidavit” rule bars consideration of Nedra’s testimony, and that English’s 

opposition to its motion for summary judgment did not comport with the Civil and Local Rules. 

None of these arguments persuades the Court.

Although English has not proffered expert testimony regarding the standard of care 

supermarkets owe to their customers, she need not do so to survive summary judgment. Under 

D.C. law, a plaintiff must establish a standard of care by expert testimony when “the subject in 

question is so distinctly related to some science, profession, or occupation as to be beyond the ken 

of the average layperson.” District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C. 1987); 

District of Columbia v. Shannon, 696 A.2d 1359, 1365 (D.C. 1997) (quoting Peters). Expert

testimony is not necessary when a defendant ignores “obvious hazards.” Boff v. Inter-Cont’l 

Hotels Corp., No. 17-cv-1523, 2018 WL 6329451, at *5 (D.D.C. Dec. 4, 2018). And “[i]n this 

case, a reasonable jury could find” that Safeway’s decision not to clean its floor for more than ten 
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minutes “created the sort of hazard that is evident to the average lay juror,” as a prior decision 

from this District indicates. Id.; see Davenport v. Safeway, Inc., No. 20-cv-1207, 2022 WL 

4379016, *3–6 (D.D.C. Sept. 22, 2022) (denying summary judgment in Safeway slip-and-fall case 

while excluding defendant’s expert testimony as to standard of care, on the theory that “in a 

‘typical negligence case, the standard of care . . . is simply that of a reasonable [person] under like 

circumstances’”) (quoting Godfrey v. Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009)). The cases 

Safeway cites do not say otherwise, as they involve more complex or technical subjects. See, e.g., 

Tripmacher v. Starwood Hotels & Resorts Worldwide, Inc., 277 F. Supp. 3d 104, 109 (D.D.C. 

2017) (requiring expert testimony in a case involving the design, construction, and placement of a 

wheelchair ramp in a ballroom); Varner v. District of Columbia, 891 A.2d 260, 265–67 (D.C. 

2006) (requiring expert testimony in a case involving the failure to expel university student). 

The “sham affidavit rule” does not require summary judgment either. That rule ordinarily

“precludes a party from creating an issue of material fact by contradicting prior sworn testimony” 

in a subsequent filing. Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007). Here, 

Safeway says that Nedra’s deposition testimony contradicts English’s prior representation, in a 

recorded phone call with a Safeway claims administrator, that she “had no knowledge of any 

Safeway store employees or managers that had any notice of the presence of [an] alleged substance 

on the floor prior to [her] fall.” English Tr. at 119:16–22. But English’s representation was not 

sworn and was not made by Nedra, whose testimony Safeway contends is a sham. Safeway cites 

no case applying the sham affidavit rule to a non-party’s testimony that contradict a party’s prior 

unsworn representations, and the Court declines to extend that rule to the facts of this case. Cf. 

Galvin, 488 F.3d at 1030–31 (declining to resolve whether “the sham affidavit rule should be 

applied to a non-party witness”).
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Finally, it is irrelevant whether English filed a deficient “statement of genuine issues setting 

forth all material facts as to which it is contended there exists a genuine issue necessary to be 

litigated.” LCvR 7(h)(1); cf. Def.’s Reply in Supp. of Summ. J. at 1–4, 9–10, Dkt. 12. English’s 

“Counter Statement to” Safeway’s “Statement of Undisputed Material Facts,” although short and 

light on citations, adequately “show[ed]” that the materials in Safeway’s own statement did “not 

establish the absence . . . of a genuine dispute” of material fact. Fed. R. Civ. P. 56(c)(1)(B); cf.

LCvR 7(h)(1) (requiring defendant’s statements to be “controverted”). At any rate, even when a 

plaintiff files no opposition to a defendant’s motion for summary judgment, the Court must still 

“determine for itself that there is no genuine dispute as to any material fact and that the movant is 

entitled to judgment as a matter of law.” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 509 

(D.C. Cir. 2016). Here, the Court cannot so determine.

For these reasons, Safeway’s motion for summary judgment is DENIED. On or before 

October 31, 2023, the parties shall file a joint status report proposing a schedule for further 

proceedings, including whether they agree to engage in mediation, either through the Circuit 

Executive’s Mediation Program or by a magistrate judge.

SO ORDERED.

__________________________

DABNEY L. FRIEDRICH

October 17, 2023 United States District Judge