Moreno v. Target Stores Incorporated

Filing 31

ORDER that Target's 19 Motion for Summary Judgment is GRANTED. The clerk will please enter judgment accordingly. Signed by Judge John W Sedwick on 3/1/2013.(LFIG)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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Marie Moreno,
Plaintiff,

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vs.

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Target Corporation,
Defendant.

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2:12-cv-01357 JWS
ORDER AND OPINION
[Re: Motion at Docket 19]

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I. MOTION PRESENTED
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At docket 19 defendant Target Corporation (“Target” or “defendant”) moves for
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summary judgment. Plaintiff Marie Moreno (“Moreno” or “plaintiff”) opposes the request
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for summary judgment at docket 24, and at docket 25 submits excerpts of depositions in
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support of her opposition. Target replies at docket 26. Moreno filed a notice of
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supplemental legal authority at docket 27. Oral argument was heard on February 15,
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2013.
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II. BACKGROUND
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On May 29, 2010, Moreno was shopping at a Target store located at 9830 W.
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Lower Buckeye Road in Tolleson, Arizona. Shortly after entering the store, while
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walking in the main aisle between the cash registers and the jewelry counter, Moreno

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slipped on a puddle of clear liquid and fell to the ground, sustaining injuries. She

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brought this negligence suit against Target for damages.

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Target moves for summary judgment arguing that it cannot be held liable for an

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accident occurring on its premises because there is no evidence that Target employees

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caused the spill, had actual notice of the spill, or had constructive notice of the spill due

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to the length of time the liquid was on the floor. In support of its position that Target did

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not have actual or constructive notice of the puddle, Target attaches an excerpt from a

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deposition of an employee, Chris Kirchner, who was working on the day of the incident

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and who testified that he did not see any liquid on the floor where Moreno fell when

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walking in that area just five minutes before the fall.

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Moreno asserts that summary judgment is not warranted because there are

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material issues of fact related to whether Target employees had constructive notice of

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the liquid on the floor. Moreno also argues that she does not have to prove Target

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employees had notice of the hazard because Target could be liable under the “mode of

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operation” rule, which looks at a business’s mode of operation to see if a proprietor

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could reasonably anticipate that hazardous conditions would regularly arise. Under this

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rule, Moreno argues that there are material issues of fact related to whether Target

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employees failed to maintain the Buckeye Road store in a reasonably safe condition

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and whether they followed all store maintenance and safety policies and procedures on

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the date in question. She submits excerpts of depositions of Target employees and her

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own deposition in support of her position that there are issues of fact related to the care

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Target employees took surrounding liquid on the floor generally and on the day of her

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fall.

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III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.”1 The materiality

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requirement ensures that “only disputes over facts that might affect the outcome of the

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suit under the governing law will properly preclude the entry of summary judgment.”2

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Ultimately, “summary judgment will not lie if the . . . evidence is such that a reasonable

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jury could return a verdict for the nonmoving party.”3 In resolving a motion for summary

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judgment, a court must view the evidence in the light most favorable to the non-moving

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party.4 The reviewing court may not weigh evidence or assess the credibility of

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witnesses.5
The moving party has the burden of showing that there is no genuine dispute as

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to any material fact.6 The moving party need not present evidence; it need only point

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out the lack of any genuine dispute as to material fact.7 Once the moving party has met

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this burden, the non-moving party must set forth evidence of specific facts showing the

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existence of a genuine issue for trial.8 All evidence presented by the non-movant must

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be believed for purposes of summary judgment, and all justifiable inferences must be

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drawn in favor of the non-movant.9 However, the non-moving party may not rest upon

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Fed. R. Civ. P. 56(a).

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Id.

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Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000).

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Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th Cir. 2005).

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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Id. at 323-25.
Anderson, 477 U.S. at 248-49.
Id. at 255.

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mere allegations or denials, but must show that there is sufficient evidence supporting

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the claimed factual dispute to require a fact-finder to resolve the parties’ differing

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versions of the truth at trial.10

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IV. DISCUSSION
A. Notice of hazardous condition
A business owner “is not an insurer of the safety of a business invitee, but only

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owes a duty to exercise reasonable care to his invitees.”11 While the question of

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whether a store owner has exercised the requisite care required to keep the premises in

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a reasonably safe condition is generally one for the jury, liability can only be imposed on

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a store owner for an invitee’s injuries under Arizona law if the plaintiff can prove (1) that

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the hazardous condition in the store was the result of the owner’s or it employee’s acts;

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(2) that the owner or its employees had actual notice of the existence of the hazardous

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condition; or (3) that the condition existed for such a length of time that in the exercise

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of ordinary care the owner or its employees should have known of it and remedied the

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danger.12 “[U]nder traditional negligence jurisprudence, a storeowner’s liability can not

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be premised simply upon a plaintiff’s proof that a storeowner had notice that a

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dangerous condition was a possibility.”13

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In this case, Moreno has not put forth any facts to suggest that Target caused the

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liquid to be on the floor. While the depositions show that there was some clear liquid on

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the floor where Moreno slipped, the mere presence of a substance on the floor does not

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raise an inference or a question of fact as to whether the substance was caused to exist

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Id. at 248-49.

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Walker v. Montgomery Ward & Co., Inc., 511 P.2d 699, 702 (Ariz. Ct. App. 1973).
Id.
Chiara v. Fry’s Food Stores of Ariz., Inc., 733 P.2d 283, 285 (Ariz. 1987).

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by an owner or its employees.14 Also, Moreno has not put forth any evidence to suggest

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that Target had actual notice of the puddle on the floor.

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As for constructive notice, Moreno claims that she has put forth sufficient

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evidence to present a question of fact because Target’s employees failed to take

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appropriate steps to find the liquid or keep the floor free of hazards. The depositions

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that Moreno submits show that there were no employees specifically assigned to patrol

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the floors for hazards during business hours. Instead, all employees were supposed to

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be on the lookout for hazards as they performed their other tasks. The depositions also

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show that there were spill stations set up throughout the store to clean up and remedy

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spills and that there was a procedure employees were to follow if they found a spill.

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There is also evidence that the employees on duty at the time of Moreno’s fall did not

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follow protocol after the fall occurred. All of that evidence, however, does not provide

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any indication of how long the liquid was on the floor, and Moreno cannot establish that

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Target had constructive notice of the puddle on the floor without presenting evidence

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regarding the length of time that the puddle existed prior to her fall.15

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Plaintiff suggests that there is a question of fact related to the issue of

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constructive notice based on evidence of Target’s inadequate inspection practices or

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lack of attentiveness to and inspection of the floors in the main aisle of the store on the

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day she fell. However, that is not the law in Arizona. Plaintiff must make at least some

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showing of how long the substance had been on the floor.16 Questions of fact related to

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inadequate inspection routines are not sufficient to send a slip and fall case to the jury.17

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Id.; see also Preuss v. Sambo’s of Ariz., Inc., 635 P.2d 1210, 1211 (Ariz. 1981) (“With
respect to slip-and-fall cases, the mere occurrence of a fall on the business premises is
insufficient to prove negligence on the part of the proprietor.”).
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Walker, 511 P.2d at 702-03.

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Id.

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Id. at 703 (rejecting the plaintiff’s argument that the defendant store’s “failure to initiate
a periodic inspection routine alone raises a jury question as to whether the store’s

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Without evidence regarding length of time the hazard existed, Moreno cannot

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demonstrate that more rigorous housekeeping or inspection would have led to the

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discovery of the liquid on the floor.

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Plaintiff cites to a recent Arizona Court of Appeals case, McMurty v. Weatherford

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Hotel, Inc.,18 in support of her argument that there are enough factual issues to go to

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trial. McMurty, however, is not on point. That case dealt with whether the open and

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obvious nature of a potentially hazardous window and balcony configuration in a hotel

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kept the window from being unreasonably dangerous for purposes of the hotel owner’s

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liability. The case does not address a slip and fall accident or constructive notice. In

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fact, it was undisputed that the owner had actual notice of the window’s potentially

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dangerous configuration and the court noted as much.19 Plaintiff likely relies on the

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case because when reciting the standards for premise liability the court in McMurty

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stated that a business owner generally has the duty to discover and correct or warn of

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unreasonably dangerous conditions that the owner should reasonably foresee.

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However, nothing else in the McMurty case suggests that the court was retracting the

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requirement that a plaintiff be able to prove actual or constructive notice to impose

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liability on premise owner for a slip and fall. Rather, what the court appears to be

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describing is something akin to the mode-of-operation rule.

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B. Method of operation

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Under the mode-of-operation rule, a plaintiff who has suffered an injury in a store

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is not required to prove that the store had notice of the hazardous condition if the store

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owner could reasonably anticipate that such a hazardous condition would regularly arise

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from the store’s mode of doing business. In other words, the owner can be liable for

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housekeeping procedures and practices met the standard of care that an ordinarily careful and
prudent store owner would have deemed adequate under the circumstances”).

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293 P.3d 520 (Ariz. Ct. App. 2013).
Id.

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hazards on the store premises that would be recognized as not highly unlikely. Under

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the mode-of-operation rule, liability is predicated on the “likelihood that certain

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hazardous conditions will recur as a result of the particular method of doing business.”20

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Moreno argues that because Target keeps coolers of drinks near the cash

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registers and immediately next to a high-traffic area of the store, it was negligent for

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failing to have reasonable inspection procedures in this area of the store to ensure the

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safety of its customers. She cites to Tom v. S.S. Kresge Co., Inc.,21 where the Arizona

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Court of Appeals concluded that the mode-of-operation rule provided a basis upon

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which a jury in a slip and fall case could infer negligence on the part of a business

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owner who sold soft drinks that patrons could carry around the premises while

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shopping. The court concluded that in a self-service store, where soft drinks were sold

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so patrons could enjoy them while shopping, it would be easily foreseeable that patrons

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could spill the soft drinks while carrying them through the store and there was evidence

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in the record to infer that the spill causing the fall was from a soft drink.

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Target, however, cites to a more recent case, Contreras v. Walgreens Drug Store

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No. 3837,22 where the Arizona Court of Appeals concluded that the mode-of-operation

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rule did not apply even though the evidence showed that the defendant store,

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Walgreens, was a self-service one where various spills occurred two times a week. The

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court stated that in order to apply the mode-of-operation rule to prevent a summary

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judgment ruling, a plaintiff has to demonstrate that the hazardous condition was one

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that would regularly or normally arise. It found that the plaintiff in the case did not have

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any evidence to show that spills occurred regularly in a specific area or in a manner that

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resulted in hazardous conditions to patrons.

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Bloom v. Fry, 636 P.2d 1229, 1233 (Ariz. Ct. App.1987).
633 P.2d 439, 442 (Ariz. Ct. App. 1981).
149 P.3d 761, 763-64 (Ariz. Ct. App. 2007).

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Contreras is on point, and based on that case, Moreno has not presented

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sufficient evidence for the mode-of-operation rule to apply. There is no evidence in the

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record to demonstrate that spills occur with such frequency in the main aisle by the

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jewelry counter or any other part of the store that they could be considered customary

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or regular occurrences that Target should have reasonably anticipated. The possibility

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of another customer creating a hazardous condition in the store alone is not enough to

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overcome the notice requirement. “If the mode-of-operation rule applied whenever

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customer interference was conceivable, the rule would engulf the remainder of

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negligence law. A plaintiff could get to the jury in most cases simply by presenting proof

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that a store’s customer could have conceivably produced the hazardous condition.”23
V. CONCLUSION

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Based on the preceding discussion, Target’s motion at docket 19 is GRANTED.

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The clerk will please enter judgment accordingly.

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DATED this 1st day of March 2013.

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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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Chiara, 733 P.2d at 286.

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