Damjanovic v. The Vons Companies, Inc. et al
Filing
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ORDER granting Defendants' 17 Motion for Summary Judgment. Signed by Judge Gloria M. Navarro on 7/21/11. (Copies have been distributed pursuant to the NEF - ECS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SLAVKO DAMJANOVIC,
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Plaintiff,
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vs.
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THE VONS COMPANIES, doing business
as VONS STORE 1963 AND SAFEWAY
INC., VONS DIVISION
Defendants.
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Case No.: 2:10-cv-00802-GMN-PAL
ORDER
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Pending before the Court is Defendants’ Motion for Summary Judgment (ECF No. 17),
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which was filed on December 16, 2010. No Response has been submitted. For the reasons that
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follow, the Motion will be GRANTED.
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I.
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BACKGROUND
This is a personal injury lawsuit arising out of injuries Plaintiff Slavko Damjanovic
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(“Plaintiff”) allegedly sustained after he slipped and fell at a grocery store operated by
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Defendants. Although the case was initiated in state court, Defendants removed it to this Court,
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invoking diversity jurisdiction. Having considered the Supplemental Brief (ECF No. 26) filed
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by Defendants in support of diversity jurisdiction in this case, the Court finds that Defendants
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have met their burden of establishing that the Court has subject matter jurisdiction over this
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lawsuit.
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After discovery had been conducted in this matter, Defendants filed a Motion for
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Summary Judgment (ECF No. 17). Plaintiff, who is currently self-represented, has failed to
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respond to the Motion, despite having been given a Klingele v. Eikenberry notice (ECF No. 18)
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and ample time in which to file a Response.
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II.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication if “the movant
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shows there is no genuine dispute as to any material fact and the movant is entitled to a
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judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that may affect the
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outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a
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verdict for the nonmoving party. See id. “Summary judgment is inappropriate if reasonable
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jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the
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nonmoving party=s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.
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2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal
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purpose of summary judgment is “to isolate and dispose of factually unsupported claims.”
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Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
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In determining summary judgment, a court applies a burden-shifting analysis. “When
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the party moving for summary judgment would bear the burden of proof at trial, it must come
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forward with evidence which would entitle it to a directed verdict if the evidence went
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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing
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the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp.
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Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In
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contrast, when the nonmoving party bears the burden of proving the claim or defense, the
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moving party can meet its burden in two ways: (1) by presenting evidence to negate an
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essential element of the nonmoving party=s case; or (2) by demonstrating that the nonmoving
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party failed to make a showing sufficient to establish an element essential to that party’s case
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on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–
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24. If the moving party fails to meet its initial burden, summary judgment must be denied and
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the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co.,
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398 U.S. 144, 159–60 (1970).
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If the moving party satisfies its initial burden, the burden then shifts to the opposing
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party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,
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the opposing party need not establish a material issue of fact conclusively in its favor. It is
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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the
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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
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Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid
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summary judgment by relying solely on conclusory allegations that are unsupported by factual
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data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go
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beyond the assertions and allegations of the pleadings and set forth specific facts by producing
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competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.
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At summary judgment, a court’s function is not to weigh the evidence and determine the
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truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
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The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn
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in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is
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not significantly probative, summary judgment may be granted. See id. at 249–50.
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III.
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ANALYSIS
Plaintiff’s Complaint (Ex. 1, ECF No. 1) does not clearly set out the cause or causes of
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action that he is pursuing. However, Plaintiff appears to be bringing a single negligence cause
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of action.
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Because Defendants would not bear the burden of proof at trial, in order to be entitled
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to summary judgment they need only: (1) demonstrate that Plaintiff failed to make a showing
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sufficient to establish an element essential to his case, or (2) present evidence negating an
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essential element of Plaintiff’s negligence claim. See Celotex Corp., 477 U.S. at 323–24.
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Defendants have demonstrated that Plaintiff has failed to make a showing as to the breach and
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causation elements of his negligence claim; therefore, they are entitled to summary judgment.
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A.
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In Nevada, like elsewhere, a plaintiff must establish four elements in order to prevail on
Negligence Standard
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a negligence claim: (1) an existing duty of care; (2) a breach of that duty; (3) legal causation;
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and (4) damages. Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1175 (Nev. 2008).
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Defendants do not dispute that business proprietors owe their invitees--such as Plaintiff--a duty
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to use reasonable care to keep their business’s premises in a reasonably safe condition for use.
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See Doud v. Las Vegas Hilton Corp., 864 P.2d 796, 799 (Nev. 1993).
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B.
Breach of Duty
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Defendants do, however, contend that Plaintiff has failed to produce evidence showing
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that they breached their duty to use reasonable care to keep their premises in reasonably safe
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condition for use. The Court agrees. Plaintiff has produced no evidence indicating that
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Defendants failed to use reasonable care in maintaining their property; “failed to take
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reasonable precautions to protect the invitee from dangers which are foreseeable . . . .”
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Twardowski v. Westward Ho Motels, Inc., 476 P.2d 946, 947 (Nev. 1970); or failed to warn
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Plaintiff of a hidden danger that Defendants knew, or reasonably should have known, about.
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Plaintiff alleged in his Complaint that “he slipped and fell as a result of a foreign liquid
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substance which Defendants had caused to be on the premises or negligently allowed to exist
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there,” (Compl. ¶ 7, Ex. 1, ECF No. 1), but has failed to produce any evidence in support of
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that claim. Because a plaintiff cannot defeat a motion for summary judgment by relying solely
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on allegations without evidentiary support, see Taylor, 880 F.2d at 1045, Defendants’ Motion
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for Summary Judgment will be granted.
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Not only have Defendants pointed to the lack of evidence in the record pertaining to the
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breach element of Plaintiff’s claim, they have also produced their own evidence indicating that
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they did not breach their duty to exercise reasonable care in maintaining reasonably safe
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premises. Specifically, they have attached a signed safety report from a Certified Safety
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Specialist, in which the Specialist concluded that, even if the floor were wet, “[t]he floor
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surface provides good surface friction for safe foot traction under dry and wet conditions, as
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noted during coefficient of friction testing.” (See Ex. C, ECF No. 17.) Furthermore, the
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Specialist reported that “[s]tore procedures for inspection are excellent and exceed industry
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practice” and that “[l]ighting in the store is good. The reported liquid substance would be open
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and obvious.” (Id.) Plaintiff has submitted no evidence to rebut this showing that Defendants
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had taken reasonable measures to prevent exactly the sort of accident about which Plaintiff
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complains. Summary judgment will be granted.
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C.
Causation
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In order to prevail on a negligence claim, Plaintiff would also have to prove that his
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injuries were proximately caused by Defendants’ failure to use reasonable care to keep its
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premises in a reasonably safe condition for use. “Proximate cause has been widely defined as
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that cause which, in natural and continuous sequence and unbroken by any efficient,
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intervening cause, produces the injury complained of and without which the result would not
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have occurred.” Doud, 864 P.2d at 801. Proximate cause consists of two components: cause in
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fact and foreseeability. Id. Cause in fact requires proof that Defendants’ failure to exercise
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reasonable care “was a substantial factor in bringing about [Plaintiff’s] injury.” Id.
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Foreseeability “is essentially a policy consideration that limits a proprietor’s liability to
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consequences that have a reasonably close connection with both the proprietor’s conduct and
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the harm that conduct originally created.” Id.
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As a preliminary matter, the causation element cannot be fulfilled if Defendants did not
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breach their duty to use reasonable care to keep their premises in a reasonably safe condition
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for use. However, even if there were a question of material fact as to whether Defendants
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breached their duty, Plaintiff has failed to produce any evidence suggesting that he can satisfy
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the causation element. Other than the unsupported allegations contained in his Complaint
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indicating that he slipped on some sort of liquid that was on the floor, Plaintiff has failed to
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bring forward anything indicating that Defendants’ alleged breach of their duty to him “was a
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substantial factor” in bringing about the injuries that he now complains of. Mere allegations
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are insufficient to overcome Defendants’ Motion, and summary judgment must be entered.
CONCLUSION
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IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF
No. 17) is GRANTED.
DATED this 21st day of July, 2011.
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Gloria M. Navarro
United States District Judge
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