Lologo et al v. Wal-Mart Stores, Inc.

Filing 71

ORDER granting in part and denying in part 63 Motion for Summary Judgment. Signed by Chief Judge Gloria M. Navarro on 4/27/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROBBIN L. LOLOGO and VINCENT J.
LOLOGO,

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Plaintiffs,
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vs.
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WAL-MART STORES, INC. d/b/a WAL-MART )
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SUPERCENTER STORE #1834; and
ADVANTAGE SALES & MARKETING LLC, )
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Defendants.
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Case No.: 2:13-cv-1493-GMN-PAL
ORDER

Pending before the Court is the Motion for Summary Judgment (ECF No. 63) filed by

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Defendant Advantage Sales & Marketing LLC (“ASM”). Plaintiffs Robbin L. Lologo and

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Vincent J. Lologo (“Plaintiffs”) filed a Response (ECF No. 64), as did Cross-Claimant Wal-

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Mart Stores, Inc. (“Wal-Mart”), (ECF No. 65). ASM filed a Reply to Plaintiffs’ Response

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(ECF No. 66) and a Reply to Wal-Mart’s Response (ECF No. 67). For the reasons discussed

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below, ASM’s Motion is GRANTED in part and DENIED in part.

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I.

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BACKGROUND
This case arises out of a slip and fall that occurred at Wal-Mart Store #1834, a Wal-Mart

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Supercenter Store in Grants Pass, Oregon (the “Wal-Mart Store”). (Am. Compl. ¶ 9, ECF No.

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57). On August 7, 2011, Plaintiffs were shopping in the Wal-Mart Store and, while

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approaching a checkout line, Ms. Lologo allegedly slipped and fell on a brownish-yellow

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substance that was on the floor. (Id.); (Pls.’ Resp. 4:4–5). A witness later identified the

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substance as applesauce. (Pls.’ Resp. 4:4–5); (Depo. of Kira Sidivy p. 33, ECF No. 65-4).

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ASM and Wal-Mart had an “In Store Promotions Agreement” (“the Agreement”) in
effect on the date of the incident. The Agreement included, among other things, an

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indemnification clause requiring that ASM indemnify Wal-Mart:

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against any, and all, Claim(s) arising out of or relating to any of
the following circumstance which arise under this Agreement:
breach of any of its obligations, representations, warranties,
covenants made under this Agreement; (ii) negligent acts
omissions by ASM or its personnel, employees, agents,
representatives in the course of performing under this Agreement.

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(i)
or
or
or

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(MSJ 5:14–24, ECF No. 63); (Agreement § 17(c), ECF No. 63-11). ASM also had an

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obligation under the Agreement to “maintain the areas surrounding the Promotional Event in a

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neat and clean condition.” (Agreement § 2(j)). Although the parties dispute the precise location

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where ASM’s promotional event took place, the parties agree that ASM distributed applesauce

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in the Wal-Mart Store on August 7th. (MSJ 11:4–6).

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Plaintiffs filed the instant action in state court on July 12, 2013. (Ex. B to Pet. for

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Removal, ECF No. 1). Wal-Mart removed the case to this Court on August 20, 2013. (ECF No.

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1). Plaintiffs amended their Complaint to add ASM as a Defendant on July 22, 2014. (ECF No.

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57). On August 1, 2014, Wal-Mart filed a Cross-Complaint containing four claims against

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ASM. (ECF No. 59). In the instant Motion, ASM requests that the Court enter summary

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judgment as to all claims against it. (ECF No. 63).

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II.

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LEGAL STANDARD
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

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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.

DISCUSSION
In considering the instant Motion, the Court will first address ASM’s arguments as to

Plaintiff’s claims, and will then address the arguments regarding Wal-Mart’s cross-claims.

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A.

Plaintiffs’ Claims

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ASM argues summary judgment is warranted as to Plaintiffs’ (i) negligence claim, (ii)

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negligent hiring and supervision claim, and (iii) loss of consortium claim. The Court will

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analyze each claim in turn.

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i.

Negligence

“To recover under a negligence theory, [a plaintiff] must prove four elements: (1) that

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[the defendant] owed him a duty of care; (2) that [the defendant] breached this duty of care; (3)

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that the breach was the legal cause of [the plaintiff’s] injury; and (4) that the complainant

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suffered damages.” Hammerstein v. Jean Dev. W., 907 P.2d 975, 977 (Nev. 1995).

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Plaintiffs argue that both Wal-Mart and ASM had a duty to maintain the Wal-Mart Store

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“in such a manner as to provide a safe environment for their invited guests.” (Am. Compl. ¶ 10,

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ECF No. 57). ASM argues that it had no duty under premises liability to Plaintiffs. (MSJ 15:9–

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13). According to Nevada law, a defendant can be held liable for negligence under the theory

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of premises liability only when the defendant is the owner or occupier of a piece of land. See,

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e.g., Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1182 (Nev. 1996). However, the

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only relevant question to this case is whether ASM can be held liable as an occupier, as it is

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undisputed that the land at issue was owned by Wal-Mart, (MSJ 15:9–13).

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ASM argues that it was not an occupier of the land because it did not have control over

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the area where the events occurred. (Id. at 16:17–17:3). Pursuant to the Agreement, ASM

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argues it had a duty to maintain only the area around its promotional event and was not

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permitted in any other area. (Id. at 16:17–17:3); (Agreement § 2(j), ECF No. 63-11). ASM

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claims the promotional event area was roughly forty-five feet away from where the incident

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occurred. (MSJ at p. 10, Figure 2).

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A negligence claim cannot arise directly from a breach of contract. See Bernard v.

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Rockhill Dev. Co., 734 P.2d 1238, 1240 (Nev. 1987) (“A breach of contract may be said to be a

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material failure of performance of a duty arising under or imposed by agreement. A tort, on the

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other hand, is a violation of a duty imposed by law, a wrong independent of contract.”).

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However, though the question is not resolved under Nevada law, courts in numerous other

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states have held that a contract may grant a licensee sufficient control over an area to establish a

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duty of care. See, e.g., Oregon-Washington R. & Nav. Co. v. Branham, 259 F. 555, 556 (9th

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Cir. 1919) (“[A]s it was clear that [the defendant] was an independent contractor, it cannot

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avoid liability for injuries sustained to a third person, where such injuries have been inflicted

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because of conditions brought about by its negligent action.”); Felix v. GMS Zallie Holdings,

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Inc., 827 F. Supp. 2d 430, 436 (E.D. Pa. 2011) aff’d, 501 F. App’x 131 (3d Cir. 2012) (holding

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that, under Pennsylvania law, independent contractors owe a duty of reasonable care to invitees

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and may be held liable in negligence for causing hazardous conditions); Stevenson v. Saratoga

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Performing Arts Ctr., Inc., 981 N.Y.S.2d 877, 879 (2014) (“[A] licensee exercising control

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owed a duty to those on the property to maintain the premises in a reasonably safe condition

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during the period of its use.”).
Here, the Agreement permitted ASM to use a portion of the Wal-Mart Store as a

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licensee, and ASM acknowledges it had a duty under the Agreement to maintain the area

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around its promotional event. (MSJ 16:21–22, ECF No. 63). Therefore, it is clear that ASM,

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pursuant to the terms of the Agreement, had a duty not to create hazardous conditions in the

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area of the promotional event that could injure Wal-Mart’s invitees.

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However, the parties dispute where the promotional event took place within the Wal-

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Mart Store. ASM argues, in accordance with report of its expert, Dustin Holmes, that the

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promotional event was located near the customer service area, beyond the point of sale and a

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minimum of forty feet away from where Ms. Lologo slipped and fell. (Id. at 16:22–23); (Report

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of Dustin Holmes at p. 4, ECF No. 63-9). Wal-Mart argues that according to the assignment

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review sheet produced by ASM, the promotional event occurred in “Action Alley” which is the

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same area where Ms. Lologo slipped and fell. (Assignment Review, ECF No. 65-9); (Wal-

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Mart’s Resp. 19:12–15). Therefore, a genuine issue of material fact exists as to where ASM’s

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promotional event was located in the Wal-Mart Store, which underlies the question as to

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whether ASM breached its duty to Plaintiffs. Accordingly, ASM’s motion for summary

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judgment will be denied as to Plaintiffs’ negligence claim.

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ii.

Negligent Hiring and Supervision Claim

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Plaintiffs claim that that ASM had a duty to adequately train and supervise its

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employees, which necessarily would include training regarding proper cleaning procedures.

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(Am. Compl. ¶ 18, ECF No. 57). Plaintiffs claim ASM breached its duty to adequately train

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and supervise its employees by not ensuring the area surrounding the promotional event was

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clean and free of hazards. (Id. at ¶ 19). ASM argues that Plaintiffs have failed to provide any

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evidence to support this claim. (MSJ 18:17–22, ECF No. 63). Indeed, rather than providing

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evidence to support their allegations, Plaintiffs merely put forward a generic request for more

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time to conduct discovery. (Pls.’ Response 5:1–4, ECF No. 64).
Plaintiffs had nearly seven weeks after ASM filed its Answer to conduct discovery and

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nearly six months after ASM filed the instant Motion to file a motion to extend discovery.

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Notably, Plaintiffs have not filed such a motion, nor do they specify what evidence they intend

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to seek if given more time to conduct discovery. Because Plaintiffs have not presented any

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evidence demonstrating that ASM breached its duty to supervise and train its employees, and

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have failed to demonstrate any likelihood that they will ascertain such evidence if additional

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discovery is granted, no genuine issue of material fact exists. Accordingly, ASM’s Motion for

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Summary Judgment will be granted as to this claim.
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Loss of Consortium Claim

Mr. Lologo claims that, as a result of ASM’s negligence, he suffered a loss of “spousal

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society, services, and consortium.” (Am. Compl. ¶ 27). ASM claims that Mr. Lologo cannot

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recover for loss of consortium because it is not liable for Ms. Lologo’s injuries. (MSJ 14:19–

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25, ECF No. 63). Because the Court, as discussed previously, will deny ASM’s Motion for

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Summary Judgment as to Ms. Lologo’s negligence claim, the Court will also deny the Motion

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as to Mr. Lologo’s loss of consortium claim.

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B.

Wal-Mart’s Cross-claims

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ASM claims summary judgment is warranted for Wal-Mart’s (i) contractual indemnity

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claim, (ii) equitable indemnity claim, (iii) contribution claim, and (iv) breach of contract claim.

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The Court will analyze each claim in turn.

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i.

Contractual Indemnity

Wal-Mart claims that, pursuant to the Agreement, ASM “is legally obligated to defend

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and indemnify Walmart for any and all claims arising out of [Plaintiffs’] lawsuit.” (Cross-

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Compl. 11:3–4, ECF No. 59). Specifically, Wal-Mart argues that ASM has a duty to indemnify

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it against claims arising out of or relating to: “(i) breach of any of [ASM’s] obligations,

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representations, warranties, or covenants made under this Agreement; (ii) negligent acts or

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omissions by ASM or its personnel, employees, agents, or representatives in the course of

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performing under this Agreement.” (Agreement § 17(c), ECF No. 63-11).

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As discussed above, because a question of fact exists as to how far the promotional

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event was from the location of Ms. Lologo’s fall, a genuine dispute of material fact exists as to

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whether ASM breached an obligation under the Agreement or negligently caused Ms. Lologo’s

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injuries. Accordingly, ASM’s Motion is denied as to Wal-Mart’s contractual indemnity claim.

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ii.

Equitable Indemnity Claim

Wal-Mart additionally claims equitable indemnity against ASM in its Cross-Complaint.

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(Cross-Compl. 11:12–24). ASM argues that a claim for equitable indemnity cannot exist

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where, as here, parties have contemplated and executed a valid indemnification agreement.

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(MSJ 20:6–11, ECF No. 63). In its Response, Wal-Mart states that because ASM has conceded

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that a valid indemnification agreement exists, ASM is estopped from later disputing the validity

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of the indemnification clause. (Wal-Mart’s Resp. 23:11–20, ECF No. 65).

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“When the duty to indemnify arises from contractual language, it generally is not subject

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to equitable considerations; rather, it is enforced in accordance with the terms of the contracting

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parties’ agreement.” Reyburn Lawn & Landscape Designers, Inc. v. Plaster Dev. Co., 255 P.3d

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268, 274 (Nev. 2011); see also F.D.I.C. v. Nevada Title Co., No. 2:13-CV-00606-GMN, 2014

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WL 4798523, at *4 (D. Nev. Sept. 25, 2014) (“The Supreme Court of Nevada has held that

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implied indemnity theories are not viable in the face of express indemnity agreements.”

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(internal quotation omitted)). Because it is undisputed that a valid indemnification agreement

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exists between ASM and Wal-Mart, ASM’s Motion will be granted as to the equitable

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indemnity claim.

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iii.

Contribution Claim

Wal-Mart claims that, in the event that it and ASM are both found liable under

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negligence and Wal-Mart satisfies more than its share of the liability, ASM should be held

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liable to Wal-Mart for the damages attributable to ASM’s negligence. (Cross-Compl. 12:13–20,

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ECF No. 59). ASM argues that Wal-Mart’s contribution claim should also be dismissed

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because ASM believes that it did not owe a duty to Plaintiffs. (MSJ 19:9–13, ECF No. 63).

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However, as discussed above, depending on where the promotional event was located, ASM

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may have breached its duty to maintain the area over which it asserted control. Accordingly,

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ASM’s Motion for Summary Judgment will be denied as to Wal-Mart’s contribution claim.

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iv.

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Breach of Contract Claim

Wal-Mart argues that ASM breached its contractual duties by failing to defend Wal-

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Mart from Plaintiffs’ claims. (Cross-Compl. 13:10–11, ECF No. 59). As stated above, under

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the Agreement, ASM has a duty to defend Wal-Mart against all claims that arise out of either a

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breach of ASM’s contractual duties or ASM’s negligence. (Wal-Mart’s Resp. 5:14–24, ECF

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No. 65). However, the question as to whether ASM acted negligently or breached its

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contractual duties depends, again, on the location of the promotional event in relation to the site

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of Ms. Lologo’s fall. Therefore, as a genuine dispute of material fact exists as to where the

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promotional event took place, ASM’s Motion for Summary Judgment will be denied as to the

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breach of contract claim.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Advantage Sales & Marketing’s Motion for Summary

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Judgment, (ECF No. 63), is GRANTED in part and DENIED in part, pursuant to the

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foregoing.

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DATED this 27th day of April, 2015.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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