Rios v. Wal-Mart Stores, Inc.

Filing 38

ORDER Denying 23 Defendant's Motion for Summary Judgment. Signed by Judge Kent J. Dawson on 10/5/12. (Copies have been distributed pursuant to the NEF - EDS)

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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. 11-CV-01592-KJD-CWH

WAL-MART STORES, INC., et al.,

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ORDER

Defendants.

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Presently before the Court is Defendant Wal-Mart Stores, Inc.’s Motion for Summary

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Judgment (#23). Plaintiff Abby Rios filed a response in opposition (#28) to which Defendant replied

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(#32).

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I. Facts

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Defendant Wal-Mart Stores, Inc. (“Walmart”) is the owner of a Walmart store located in Las

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Vegas, Nevada. On August 14, 2009, Plaintiff Abby Rios was walking through the soda and chips

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aisle at Walmart when she slipped on some spilled yogurt. As a result of her slip, Rios fell and

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sustained injuries. Rios asserts that her fall and the resulting injuries were caused by the negligence

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of Walmart. Rios filed her complaint against Walmart and Walmart now moves for summary

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judgment.

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II. Analysis

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A. Legal Standard for Summary Judgment

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Summary judgment shall be granted if there is no genuine dispute as to any material fact and

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the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving

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party bears the initial burden of showing the absence of a genuine dispute of material fact. See

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to

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set forth specific facts demonstrating a genuine factual dispute for trial. See Matsushita Elec. Indus.

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Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(e).

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All justifiable inferences must be viewed in the light must favorable to the nonmoving party.

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See Matsushita, 475 U.S. at 587. However, the nonmoving party must produce specific facts, by

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affidavit or other evidentiary materials similar to those described in Rule 56(c), to show that there is

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a genuine dispute for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

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“[U]ncorroborated and self-serving testimony,” without more, will not create a “genuine issue” of

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material fact precluding summary judgment. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,

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1061 (9th Cir. 2002).

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Summary judgment shall be entered “against a party who fails to make a showing sufficient

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to establish the existence of an element essential to that party’s case, and on which that party will

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bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted

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if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.

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B. Defendant’s Motion for Summary Judgment on Plaintiff’s Negligence Theory

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In Nevada, to prevail on a negligence claim, the plaintiff must establish four essential

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elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached its duty; (3) the

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breach was the actual and proximate cause of the plaintiff's injury; and (4) the plaintiff suffered

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damage. Perez v. Las Vegas Med. Ctr., 805 P.2d 589, 590-91 (Nev. 1991). For the defendant to

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prevail on a motion for summary judgment, it must negate at least one of the elements of negligence.

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Id. at 591.

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Here, the parties dispute whether Walmart breached its duty of care to Rios. Generally, the

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duty owed by a business to its patrons is “to keep the premises in a reasonably safe condition for

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use.” Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322 (Nev. 1993). That duty can be breached if the

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business owner or one of its agents causes a foreign substance to be spilled on the floor, or if it has

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actual or constructive notice that a substance is on the floor and fails to remedy the problem. Id. at

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322-23.

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Rios has not offered evidence to suggest that Walmart caused the spill, and she does not

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claim that Walmart had actual notice of the spill. Accordingly, Rios is required to provide evidence

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that shows Walmart had constructive notice of the spill. Whether Walmart had constructive notice of

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the hazardous condition caused by the spill is a question of fact typically reserved for a jury. See Id.

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at 323.

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Walmart has shown that less than five minutes prior to Rios’s fall, one of its employees,

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Timothy Wagner, performed a routine safety sweep of the area. In his sworn affidavit, Wagner states

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that he performed safety sweeps “once every hour when the safety sweep was announced over the

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store . . . public address system.” Wagner explains that the safety sweep was normally performed by

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passing through the aisles with a large dust mop, and that if it was not possible to pass through an

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aisle with the dust mop, Wagner would visually inspect the aisle for any potential safety hazards.

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Wagner states that on August 14, 2009, “I determined that I could not enter the soda and chips aisle

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with my dust mop because there were too many customers in the aisle. I visually inspected the soda

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and chips aisle and did not see any potential safety hazards.”

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In response, Rios has provided video surveillance footage of the aisle in which she slipped

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and fell that suggests that an adequate visual inspection would have been impossible. The video

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shows that at the time Wagner approached with his dust mop, a large group of patrons was standing

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at the entrance of the aisle. Rios asserts that this group not only prevented Wagner from entering with
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his dust mop, but that it also prevented him from adequately conducting his safety check because his

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view of the spill area was blocked.

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The evidence of constructive notice provided by Rios is not strong, but it is enough to

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establish a genuine dispute for trial. Viewing the evidence presented in the light most favorable to

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Rios, a reasonable jury could find that Walmart failed to adequately keep the premises in a

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reasonably safe condition for use, and that Mr. Rios was injured as a result. Accordingly,

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Defendant’s motion for summary judgment is denied.

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III. Conclusion

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IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (#23) is
DENIED.
DATED this 5th day of October 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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