Kinast v. Target Corporation et al
Filing
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ORDER that Defendant Target Corporation's Motion for Summary Judgment, (Doc. 31 ), is GRANTED. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge Douglas L Rayes on 4/21/2016. (KMG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Vonda Kinast,
No. CV-15-01063-PHX-DLR
Plaintiff,
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v.
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ORDER
Target Corporation, et al.,
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Defendants.
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Before the Court is Defendant Target Corporation’s (“Target”) Motion for
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Summary Judgment. (Doc. 31.) The motion is fully briefed, and the Court heard oral
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argument on April 20, 2016. For the following reasons, Target’s motion is granted.
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BACKGROUND
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In August 2014, Plaintiff Vonda Kinast slipped and fell as she walked down the
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main aisle of a Target store in Mesa, Arizona to meet her friend, Mary Ewald. (Doc. 32,
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¶¶ 1-2, 4, 7-8.) Kinast did not see what caused her fall, but felt the sensation of her foot
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slipping on something which “felt like . . . baby powder consistency.” (Id., ¶¶ 9, 14.)
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Ewald did not see Kinast fall, but came to her aid afterward. (Id., ¶¶ 10-13.) Evan Serie,
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a former Target employee and the manager on duty at the time Kinast fell, responded to
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the scene, and paramedics arrived several minutes later. (Id., ¶¶ 17, 20.) Although
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Kinast did not see anything on the floor before her fall, both she and Ewald saw a wipe
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nearby after the paramedics arrived. (Id., ¶¶ 15-17.) Kinast does not know how long the
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wipe was on the floor, or whether it was there before she fell. (Id., ¶ 19.) During the
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relevant time period, the main aisle was busy and crowded. (Id., ¶¶ 5-6.) Approximately
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212 other people walked through the same aisle within an hour of the fall. (Id., ¶ 28.)
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Further, fourteen people walked near the area where Kinast fell within two minutes
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before the incident. (Id., ¶ 29.) No other customers slipped and fell during this time.
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(Id., ¶ 28.)
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In September 2014, Kinast brought a negligence action against Target in Maricopa
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County Superior Court. (Doc. 1-1 at 2-7.) Target removed to this Court and now moves
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for summary judgment. (Docs. 1, 31.)
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LEGAL STANDARD
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Summary judgment is appropriate if the evidence, viewed in the light most
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favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to
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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
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P. 56(a). “[A] party seeking summary judgment always bears the initial responsibility of
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informing the district court of the basis for its motion, and identifying those portions of
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[the record] which it believes demonstrate the absence of a genuine issue of material
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fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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Substantive law determines which facts are material and “[o]nly disputes over
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facts that might affect the outcome of the suit under the governing law will properly
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preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury
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could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc.,
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281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the
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nonmoving party must show that the genuine factual issues “‘can be resolved only by a
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finder of fact because they may reasonably be resolved in favor of either party.’” Cal.
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Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th
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Cir. 1987) (quoting Anderson, 477 U.S. at 250).
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summary judgment “may not rest upon mere allegations of denials of pleadings, but . . .
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Furthermore, the party opposing
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must set forth specific facts showing that there is a genuine issue for trial.” Brinson v.
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Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995); see also Fed. R. Civ. P.
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56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
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If the nonmoving party’s opposition fails to specifically cite to materials either in the
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court’s record or not in the record, the court is not required to either search the entire
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record for evidence establishing a genuine issue of material fact or obtain the missing
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materials. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir.
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2001); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988).
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ANALYSIS
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“A business proprietor has an affirmative duty to make and keep his premises
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reasonably safe for customers.” Chiara v. Fry’s Food Stores of Ariz., Inc., 733 P.2d 283,
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285 (Ariz. 1987). However, “[t]he mere occurrence of a fall on a floor within business
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premises is insufficient to prove negligence on the part of the proprietor.” Walker v.
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Montgomery Ward & Co., Inc., 511 P.2d 699, 701 (Ariz. Ct. App. 1973). A proprietor
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may be liable for an invitee’s injuries only if the proprietor created the dangerous
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condition, had actual or constructive notice of it, or if the proprietor reasonably could
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anticipate that its mode of operation would regularly produce hazardous conditions.
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Chiara, 733 P.2d at 285-86. Kinast concedes she cannot prove Target created the
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condition that caused her fall, or that it had actual notice of it. (Doc. 39 at 7.) Instead,
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Kinast seeks to hold Target liable on constructive notice and mode of operation theories.
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I. Constructive Notice
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“[U]nder traditional negligence jurisprudence, a storeowner’s liability can not be
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premised simply upon a plaintiff’s proof that a storeowner had notice that a dangerous
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condition was a possibility.” Chiara, 733 P.2d at 285. Rather, a plaintiff must show that
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the proprietor “ha[d] notice of the specific dangerous condition itself . . . .” Id. Thus,
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“[o]ne of the most important questions that must be answered in establishing constructive
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notice is the length of time that a given [condition] has been present.” Walker, 511 P.2d
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at 702. Target argues that Kinast cannot prove it had constructive notice of the wipe on
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the floor. The Court agrees.
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Kinast has not provided sufficient evidence from which a jury reasonably could
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determine the length of time that the wipe was on the floor. Kinast did not see the wipe
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before she fell and even admits that the wipe might not have been on the floor until after.
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Instead, she argues that Target’s housekeeping practices create a triable question of fact.
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Her argument is similar to one rejected by the Arizona Court of Appeals in Walker, in
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which the plaintiff sued the defendant proprietor after slipping on a peach. Id. at 701.
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The defendant did not have a regular inspection schedule; each employee “had the
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responsibility of looking out for, and cleaning up, any spills.” Id. The plaintiff urged the
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court “to adopt a test for determining a defendant’s culpability for injuries to a business
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invitee based solely upon evidence of defendant’s housekeeping practices.” Id. at 703.
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The court held that “such a test is not the law in Arizona . . . .” Id. Instead, “[a] plaintiff
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must show that the defective condition had been in existence for a sufficient length of
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time prior to the injury for the proprietor, in the exercise of reasonable care, to find and
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correct it, or take remedial action.” Id. The court affirmed a summary judgment for the
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defendant because the plaintiff produced no evidence regarding the length of time that the
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peach was on the floor. Id. at 704. Similarly, Kinast provides no evidence regarding the
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length of time that the wipe was on the floor prior to her fall and therefore cannot prove
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that Target had constructive notice.
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Kinast argues that whether Target had constructive notice of the condition is
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“speculative and therefore a question for the jury.” (Doc. 39 at 8.) However, Arizona
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law does not permit merely speculative claims to reach a jury. See McGuire v. Valley
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Nat’l Bank of Phoenix, 381 P.2d 588, 590 (Ariz. 1963) (upholding directed verdict
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against plaintiff where there was no evidence from which a reasonable jury could infer
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“that one period of time was more reasonable than any other” and instead would have to
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guess whether the condition had been present for a sufficient length of time).
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Accordingly, because Plaintiff fails to provide any evidence regarding the length of time
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the wipe was on the floor, no reasonable jury could find that the wipe was on the floor
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long enough to put Target on constructive notice of its presence.
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II. Mode of Operation
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Even where actual or constructive notice is lacking, a business may be liable for
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an accident on its premises based on its “choice of a particular mode of operation and not
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[the] events surrounding the plaintiff’s accident.” Contreras v. Walgreens Drug Store
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No. 3837, 149 P.3d 761, 763 (Ariz. Ct. App. 2006). To prevail under a mode-of-
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operation theory, a plaintiff must establish: “(1) the business reasonably could anticipate
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that the hazardous condition would occur on a regular basis, and (2) the business did not
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exercise reasonable care under the circumstances.”
Shuck v. Texaco Refining &
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Marketing, Inc., 872 P.2d 1247, 1249 (Ariz. Ct. App. 1994). The rule is of limited
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application. Chiara, 733 P.2d at 286. It “focuses not on whether a [condition] occurs at
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some interval,” but on whether the condition creates a hazard “to customers with
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sufficient regularity to be considered customary, usual, or normal.” Contreras, 149 P.3d
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at 764.
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Target admits that customers sometimes dispose of wipes in carts rather than in
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trashcans.
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hazardous conditions for Target’s customers. This case is similar to Contreras, in which
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the plaintiff slipped on a slimy blue substance on the floor of the defendant’s store. 149
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P.3d at 762. The plaintiff produced evidence that spills occurred a couple of times per
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week. Id. Affirming the trial court’s entry of summary judgment for defendant, the
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Arizona Court of Appeals stated that “although [the] evidence might permit a reasonable
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jury to conclude spills occur with some regularity, it does not permit the inference such
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spills regularly created a hazardous condition.” Id. at 763. Because the plaintiff did not
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present evidence “about the location of the spills or the hazard they present to
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customers,” the court held that evidence of spills occurring twice a week was “not
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sufficient for a reasonable jury to conclude that a hazardous condition resulting from
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those spills would regularly occur.” Id. Likewise, Kinast presents no evidence of past
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incidents involving cart wipes such that Target reasonably could anticipate wipes
However, Kinast presents no evidence that cart wipes regularly created
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regularly would pose a hazard. On this record, no reasonable jury could find that Target
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reasonably should have anticipated dangerous conditions from cart wipes based on its
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mode of operation.
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CONCLUSION
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Target is entitled to summary judgment because Kinast cannot show it had
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constructive notice of the condition that caused her fall, or that Target reasonably could
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anticipate that its mode of operation would regularly produce hazardous conditions.
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IT IS ORDERED that Defendant Target Corporation’s Motion for Summary
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Judgment, (Doc. 31), is GRANTED. The Clerk shall enter judgment accordingly and
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terminate this case.
Dated this 21st day of April, 2016.
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Douglas L. Rayes
United States District Judge
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