Rios v. Wal-Mart Stores, Inc.

Filing 214

ORDER denying 187 Motion to Stay.; denying 189 Motion for Attorney Fees.; granting 191 Motion for Judgment.; denying 195 Motion to Strike.; granting 203 Motion to Withdraw.; vacating 183 Judgment. Signed by Judge Kent J. Dawson on 9/29/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ABBY RIOS,

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Plaintiff,

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v.

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Case No. 2:11-CV-1592-KJD-GWF

WAL-MART STORES, INC,

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ORDER

Defendant.

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Presently before the Court is Defendant’s Motion for Judgment as a Matter of Law (#191).

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Plaintiff filed a response in opposition (#199) to which Defendant replied (#204/205).1 Also before

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the Court is Plaintiff’s Countermotion to Strike the Motion for JMOL (#195). Defendant filed a

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response in opposition (#206) to which Plaintiff replied (#207). The Court has also considered the

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briefing in Defendant’s Motion to Stay Judgment (#187) to which Plaintiff filed a response in

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opposition (#194).

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I. Background

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Simply put, this is a slip-and-fall case involving Defendant Wal-Mart. The key issue at trial

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was whether Defendant had notice, actual or constructive, of a foreign substance on the floor which

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Defendant’s unopposed Motion to Withdraw (#203) the reply (#202) to the opposition filed on October 28,
2015 is hereby GRANTED.

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caused Plaintiff to fall and caused her subsequent injuries. During the trial, it became clear to the

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Court that one of the crucial issues was how long the substance had been on the floor. The Court

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raised that issue with the parties prior to Defendant making a motion under Federal Rule of Civil

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Procedure (“Rule”) 50(a). See Partial Transcript, Document No. 190, p. 3-11. The Court suggested

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that a special verdict would be necessary in which the jury determined what amount of time the

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foreign substance had been on the floor. Id. Eventually, the Court and parties settled on a special

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verdict that asked first: “How long do you conclude the substance was on the floor?” Jury Verdict,

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Docket No. 184, p.1, l. 13-14. That question was followed by questions on Defendant’s negligence,

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causation of damages and the total amount of damages by category. Initially, the Court told

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Defendants that they would have to file a motion under Rule 50(a) and mused that the Court may

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delay ruling on the motion until it determined whether the jury’s answers on the special verdict

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eliminated need for its consideration. Defendant did not raise the issue of its motion under Rule50(a)

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until after closing arguments and after the case had been submitted to the jury. See Transcript

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(Partial) of Proceedings, Docket No. 186, p. 7-9.

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In response to Question 1 posed by the Court on the Verdict (#184), the Jury found that the

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foreign substance had been on the floor for only 2 minutes and 12 seconds. In response to the second

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question, “Was defendant Wal-mart negligent?”, the Jury answered “Yes.” Now, the parties have

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filed the present motions disputing whether sufficient evidence supports the juries verdict and

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whether Defendant filed a timely Rule 50(a) motion. The Court finds that the answer to the questions

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in its special verdict were inconsistent and the Court must vacate the Judgment in Plaintiff’s favor

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based on the Court’s duties arising under Rule 49.

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II. Analysis

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A. Motions arising under Rule 49 and 50

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Generally, the Ninth Circuit adheres, strictly, “to the requirements of Rule 50(b), which

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prohibit a party from moving for judgment as a matter of law after the jury’s verdict unless that

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motion was first presented at the close of evidence.” Image Tech. Servs., Inc. v. Eastman Kodak Co.,
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125 F.3d. 195, 1212 (9th Cir. 1997); see also Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th

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Cir. 2002). If a party fails to make a motion for judgment as a matter of law (“JMOL”) under Rule

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50(a) before the case is submitted to the jury, “a party cannot question the sufficiency of the evidence

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. . . before the district court[.]” Cabrales v. County of Los Angeles, 864 F.2d 1454, 1459 (9th Cir.

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1988) vacated on other grounds by 490 U.S. 1087 (1989).

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However, “[w]hen a special verdict does not support a judgment a reviewing court may make

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an exception to the Rule 50(b) requirement of a motion for a directed verdict as a prerequisite to a

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motion for [judgment as a matter of law].” Pierce v. S. Pacific Transp. Co., 823 F.2d 1366, 1369 (9th

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Cir. 1987). “Similarly, when a jury’s answers are irreconcilably inconsistent, a reviewing court may

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review whether the answers support the judgment even in the absence of either a motion for directed

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verdict or a motion for [judgment as a matter of law].” Id. “[W]hen the challenge is to the

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consistency of the answers under a Rule 49(a) special verdict, and not to the sufficiency of the

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evidence supporting a general verdict,” no motion under Rule 50(a) is required as a prerequisite. Id.

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Here, Plaintiff has opposed Defendant’s motions to stay the judgment and for judgment as a

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matter of law in addition to moving to strike the motion for judgment as a matter of law. Plaintiff is

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certainly correct about one issue. Defendant failed to make a timely motion for directed verdict, or

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judgment as matter of law under Rule 50(a). The mention of the issue, after closing arguments while

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the Court discussed the labeling of exhibits to be delivered to the jury, happened after the case had

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been submitted to the jury. “[A] motion must be made before the judge submits the case to the jury.”

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Tortu v. Las Vegas Metro. Police Dept., 556 F.3d 1075, 1083 (9th Cir. 2009). Therefore, any motion

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under Rule 50(b) challenging the sufficiency of the evidence is precluded.

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However, the Court clearly anticipated that issues would arise under the Rule 49(a) special

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verdict and told Defendant that it would have to “write it up.” The Court construes Defendant’s

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motions as arising under Rule 49(a) as anticipated. The Court does note that Defendant consistently

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conflates the issues and clearly believed that it also had grounds to move under Rule 50(b).

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In this case, judgment was entered in accordance with a special verdict. The motion for

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JMOL does allege inconsistencies in the answers given in the special verdict. “When a special

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verdict does not support a judgment, a . . . court may make an exception to the Rule 50(b)

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requirement of a motion for directed verdict as a prerequisite to a motion for JNOV.” Pierce, 823

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F.2d at 1369. Further, Defendant need not have objected to the special verdict before discharge of

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the jury to preserve its objections. See id. at 1370. Accordingly, Defendant properly filed a motion to

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resolve the inconsistent answers. Thus, the Court denies Plaintiff’s motion to strike Defendant’s

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motion for judgment as a matter of law.

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B. Inconsistency between Answers to Question 1 and Question 2

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In response to Question 1 of the Verdict, the jury concluded that the foreign substance had

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been on the floor for two (2) minutes and twelve (12) seconds. In response to Question 2, the jury

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responded that, “Yes”, Defendant Wal-Mart was negligent. The inconsistency between these two

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answers is that there was no negligent act by Wal-Mart that led to the spill nor a negligent act in the 2

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minutes and 12 seconds between the spill and Plaintiff’s fall that led to her injuries.

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Under Nevada law, Plaintiff was required to prove the following essential elements to prevail

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on its claim for negligence: (1) duty; (2) breach of duty; (3) causation; and (4) damages. See Perez v.

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Las Vegas Med. Ctr., 805 P.2d 589, 590-91 (Nev. 1991). Essential to establishing that Defendant

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breached its duty of care, Plaintiff was required to prove either: (1) that Wal-Mart created the

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hazardous condition, or (2) than an employee or agent of Wal-Mart knew of the hazardous condition

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prior to Plaintiff’s incident. See Eldorado Club, Inc. v. Graff, 377 P.2d 174-175 (Nev. 1962).

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Alternatively, Plaintiff could prove constructive notice through evidence that the foreign substance

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was on the floor for an unreasonable length of time before the incident such that Wal-Mart should

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have known about it. See id. at 511 (“It would be grossly unfair to demand immediate awareness of

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new peril”).

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There is no evidence in this case from which a reasonable jury could infer that Wal-Mart had

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either actual notice of the foreign substance or constructive notice of the substance on the floor. The
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aisle was inspected twenty-two (22) to twenty-four (24) seconds before the time the jury found the

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substance was spilled on the floor. The aisle was not swept because it was blocked by customers or

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carts in the aisle.

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In response, Plaintiff asserts that Wagner, the employee conducting the safety sweep, should

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have come back to sweep the aisle in question at a later time. Even assuming that was the proper

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procedure,2 the testimony adduced at trial was that the employee had the discretion on how to sweep

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an aisle based on customer volume, number of aisles to be swept, the time of day, amount of debris

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and other factors. Speculation regarding what Defendant should have done or could have done, how

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long it would take and whether it would have prevented, in a matter of seconds, Plaintiff’s slip and

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fall, does not meet her burden in establishing negligence by a preponderance of the evidence. This is

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where the inconsistency in the juries’ answers to the questions arises. Having found that the foreign

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substance was on the floor for only 2 minutes and 12 seconds before Plaintiff fell, the jury could not

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conclude that Wal-Mart’s negligence led to her injuries without evidence that Wal-Mart knew of the

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spill or should have known of the spill. There was simply no evidence from which the jury could

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conclude that Wal-Mart knew or should have known of the foreign substance on the floor. Assuming

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that Plaintiff is correct, and Wagner did not even look down the aisle, his failure to do so did not

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cause Plaintiff’s injuries, because had he looked down the aisle, he would have seen nothing, because

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the foreign substance was not yet there.

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Faced with this inconsistency, Plaintiff also asserts that Defendant made a judicial admission

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during closing arguments that if the substance had been on the floor longer than two (2) minutes then

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Defendant was liable. Defendant made no such admission. Defendant did make the argument that

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about two minutes would have been an unreasonable time to expect them to discover the substance

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and act upon that discovery. Defendant used the term “two minutes” generally and did not argue that

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The Court ruled during trial that “nonadherence to sufficient policies” would not be enough to inculpate
Defendant. See McConnell v. Wal-Mart Stores, Inc., 995 F. Supp.2d 1164, 1169 (D. Nev. 2014). Additionally, Plaintiff
adduced no evidence of industry standards or policies.

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longer than two minutes was negligent. To any extent that Plaintiff argues that Defendant made a

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judicial admission, the Court disagrees.

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Accordingly, because the answers to the questions in the verdict were inconsistent, the Court

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concludes that the jury erred in determining that Wal-Mart was negligent. Even if the jury was

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correct in determining that Wal-Mart was negligent, there was no evidence from which the jury could

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conclude that the negligence caused Plaintiff’s injuries. Therefore, as a matter of law, the Court

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vacates the Judgment (#183) and directs the Clerk of the Court to enter judgment for Defendant and

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against Plaintiff.

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III. Conclusion

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Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Stay Judgment (#187)
is DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff’s Motion for Attorney’s Fees (#189) is DENIED
as moot;
IT IS FURTHER ORDERED that Defendant’s Motion for Judgment as a Matter of Law
(#191) is GRANTED;

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IT IS FURTHER ORDERED that Plaintiff’s Countermotion to Strike (#195) is DENIED;

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IT IS FURTHER ORDERED that Defendant’s Motion to Withdraw (#203) is GRANTED;

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IT IS FURTHER ORDERED that the Clerk of the Court VACATE Judgment (#183);

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IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendant

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and against Plaintiff.
DATED this 29th day of September 2016.

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_____________________________
Kent J. Dawson
United States District Judge

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