Patton v. Wal-Mart Stores, Inc.

Filing 56

ORDER Denying 27 Motion for Summary Judgment. Signed by Chief Judge Gloria M. Navarro on 3/4/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Margaret A. Patton,
vs.

Plaintiff,

Wal-Mart Stores, Inc.,
Defendant.

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Case No.: 2:12-cv-02142-GMN-VCF
ORDER

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Pending before the Court is the Motion for Summary Judgment (ECF No. 27) filed by

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Defendant Wal-Mart Stores, Inc. (“Wal-Mart”), to which Plaintiff Margaret A. Patton has filed

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a Response (ECF No. 33) and Defendant has filed a Reply (ECF No. 35). On February 11,

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2014, the Court held a hearing on the motion, and permitted the parties to submit additional

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briefing. (ECF No. 53.) On February 25, 2014, both parties filed Supplemental Briefs (ECF

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Nos. 54, 55.)

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I. BACKGROUND

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Plaintiff alleges negligence claims against Defendant arising from her slip and fall while

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shopping on Defendant’s premises. (Compl., Ex. B to Notice of Removal, ECF No. 1-2.)

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Plaintiff alleges that she suffered injuries as a result of Defendant’s breach of duty relating to

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premises liability and hiring and supervision. (Id.)

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In July 2013, the day before Defendant filed the instant Motion for Summary Judgment

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(ECF No. 27), Plaintiff filed a Motion for Sanctions for Spoliation of Evidence (ECF No. 26)

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relating to Defendant’s destruction of video evidence of the events from which Plaintiff’s

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claims arise. Months after the motions were fully briefed, and after the expiration of a stay

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requested by the parties in order to pursue mediation and settlement discussions (see Order,

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July 26, 2013, ECF No. 31), United States Magistrate Judge Cam Ferenbach granted Plaintiff’s

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Motion for Sanctions (ECF No. 26), finding that Defendant should be sanctioned in the form of

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an adverse inference jury instruction relating to the destroyed video evidence. (Order, Nov. 20,

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2013, ECF No. 51.)

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Despite this ruling, Defendant maintains its argument that even drawing all inferences in

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Plaintiff’s favor, no reasonable jury could return a verdict for Plaintiff; and accordingly, that it

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is entitled to summary judgment in its favor.

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II. LEGAL STANDARD

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The Federal Rules of Civil Procedure provide for summary adjudication when the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that

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may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable

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jury to return a verdict for the nonmoving party. See id. “Summary judgment is inappropriate if

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reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict

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in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th

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Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A

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principal purpose of summary judgment is “to isolate and dispose of factually unsupported

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claims.” 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 contrast, when the nonmoving party bears the burden of proving the claim or defense,

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the 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. DISCUSSION

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“In a negligence action, the plaintiff has the burden of demonstrating the following: (1)

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that the defendant had a duty to exercise due care with respect to the plaintiff; (2) that the

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defendant breached this duty; (3) that the breach was both the actual and proximate cause of the

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plaintiff's injury; and (4) that the plaintiff was damaged.” Joynt v. Cal. Hotel & Casino, 835

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P.2d 799, 801 (Nev. 1992).

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A “‘business owes its patrons a duty to keep the premises in a reasonably safe condition

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for use.’” FGA, Inc. v. Giglio, 278 P.3d 490, 496 (Nev. 2012) (quoting Sprague v. Lucky

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Stores, Inc., 849 P.2d 320, 322 (Nev. 1993)). Here, the parties do not appear to dispute that

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Defendant had a duty to exercise care with respect to Plaintiff.

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Instead, Defendant disputes the sufficiency of Plaintiff’s evidence as to breach and

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causation in arguing that it is entitled to summary judgment. (Mot. Summ. J., ECF No. 27.)

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“Where a foreign substance causing a slip and fall is made to be on the floor by the business

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owner or one of its agents, then ‘liability will lie, as a foreign substance on the floor is usually

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not consistent with the standard of ordinary care.’” FGA, Inc. v. Giglio, 278 P.3d at 496

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(quoting Sprague, 849 P.2d at 322). “Traditionally, where a foreign substance causing a slip

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and fall results from ‘the actions of persons other than the business or its employees, liability

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will lie only if the business had actual or constructive notice of the condition and failed to

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remedy it.’” Id. (quoting Sprague, 849 P.2d at 322–23).1

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Defendant argues that Plaintiff has failed to make a prima facie showing of negligence

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because Plaintiff has not shown that Defendant had actual or constructive notice of a hazardous

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condition. (Mot. Summ. J., 7–13.) The Magistrate Judge’s ruling on Plaintiff’s Motion for

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“[T]here is a modern trend toward modifying this traditional approach to premises liability to accommodate
newer merchandising techniques, such as the shift that grocery stores have made from clerk-assisted to selfservice operations.” FGA, Inc. v. Giglio, 278 P.3d at 496. However, neither party appears to argue that this
approach should be applied here.

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Sanctions for Spoliation of Evidence (ECF No. 26) had not yet been entered when briefing

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concluded, and in the original briefing Defendant does not address whether the missing video

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footage would have supported Plaintiff’s claim that Defendant had notice of the hazard. (See

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Reply to Mot. Summ. J., 7:9-25, ECF No. 35.)

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After briefing concluded, the Magistrate Judge found that an adverse inference jury

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instruction was appropriate because Defendant had notice that the video evidence was

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potentially relevant to the litigation before it was destroyed, and its conduct in failing to

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preserve the evidence was willful or grossly negligent. (Order, Nov. 20, 2013, ECF No. 51.)

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“A federal trial court has the inherent discretionary power to make appropriate

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evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Med. Lab.

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Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 824 (9th Cir. 2002) (internal

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quotation marks omitted). “This power includes the power to sanction the responsible party by

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instructing the jury that it may infer that the spoiled or destroyed evidence would have been

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unfavorable to the responsible party.” Id. “When relevant evidence is lost accidentally or for an

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innocent reason, an adverse evidentiary inference from the loss may be rejected.” Id.

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The Court cannot construe the Magistrate Judge’s findings as a determination that the

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video evidence was lost accidentally or for an innocent reason. And the Court finds no basis to

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disagree with the Magistrate Judge that an appropriate sanction is an instruction to the jury that

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it may infer that the video evidence would have been unfavorable to Defendant.

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Despite these findings, Defendant relies on the Ninth Circuit’s holding in Med. Lab., 306

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F.3d at 825, for the proposition that summary judgment may still be granted in its favor. (See

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Def.’s Supp. Brief, ECF No. 55.) In Med. Lab., the Ninth Circuit affirmed the district court’s

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summary judgment ruling in favor of a defendant where the defendant lost relevant evidence,

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but there was no showing of bad faith or intentional conduct, and the plaintiff had also failed to

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rely on “not-insubstantial evidence” that was otherwise available. 306 F.3d at 824–25.
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Here, Defendant cannot show a similar lack of culpability, and also cannot show the

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availability of some other “not-insubstantial” evidence on which Plaintiff could rely. Unlike in

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Med. Lab., where the defendant’s expert witness inadvertently left pap smear slides in a

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Switzerland taxicab and the defendant was unable to recover the original slides after extensive

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efforts, here, at best, Defendant took no action to preserve the video evidence after receiving

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notice of the litigation, and its default operating procedure was to periodically erase video data

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(see Briggs Aff., 3:¶14, ECF No. 32-2). Also distinguishing the instant facts from those in

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Med. Lab., where secondary evidence of the pap smear slides was available in the form of

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digital copies, here there is no comparable secondary evidence of the video footage, and

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Plaintiff has relied on the only other available evidence – eyewitness testimony.

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Contrary to Defendant’s arguments in its Supplemental Brief (ECF No. 55), Plaintiff has

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proffered evidence in support of her claim, in the form of her own testimony. (See Patton Dep.,

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Ex. A to Response to Mot. Summ. J., ECF No. 33-1.) During her deposition, Plaintiff testified

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that two of Defendant’s employees were in the aisle as she was entering. (See Patton Dep. at

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77–79.) Furthermore, no party denies that there was a clear liquid on the floor where Plaintiff

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was lying after her fall.

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The Court does not find that Plaintiff’s testimony is “utterly inadequate” or

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“insubstantial” as Defendant urges, particularly in light of Defendant’s own actions that have

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prevented Plaintiff from relying on the video evidence that was available. Defendant produced

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the testimony of its own employees, and produced video footage and photographs taken during

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the time period after Plaintiff’s fall, but the existing video footage of the area prior to Plaintiff’s

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fall was destroyed by Defendant. Although Defendant’s employee Mr. Burton testified that he

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saw no hazard prior to Plaintiff’s fall, Plaintiff’s testimony as to the presence of Defendant’s

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employees in the aisle as she was entering could lead to an inference that an employee of

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Defendant had seen the hazard prior to Plaintiff’s fall.
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Therefore, drawing all reasonable inferences in Plaintiff’s favor, as the Court must for

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the purpose of Defendant’s summary judgment motion, the Court finds that a reasonable jury

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could believe Plaintiff’s testimony and disbelieve the testimony of Defendant’s witnesses; and

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together with an adverse jury instruction as to the missing video footage, a reasonable jury

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could conclude that Defendant more likely than not had actual or constructive notice of the

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hazardous condition, and therefore breached its duty to maintain its premises in a reasonably

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safe condition.

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For the purpose of this motion, it is not for the Court to decide whether Plaintiff’s

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testimony is credible, or whether Plaintiff is likely to succeed at trial, but only to determine

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whether there is a genuine dispute of material fact as to Plaintiff’s claims. For the reasons

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stated in this Order, and at the hearing on the motion, the Court does find that there is a genuine

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dispute of material fact as to whether Defendant had notice of the hazardous condition, and that

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Defendant has not met its burden to show that it is entitled to judgment as a matter of law.

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IV. CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Summary Judgment (ECF No. 27) is

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DENIED.

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DATED this 4
_____ day of March, 2014.
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Gloria M. Navarro, Chief Judge
United States District Court

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