Martinez v. Wal-Mart Stores, Inc.

Filing 42

ORDER. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that 32 defendants' motion for summary judgment be, and the same hereby is, GRANTED. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 2/17/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROSALIND MARTINEZ,

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Plaintiff(s),

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Case No. 2:15-CV-2013 JCM (VCF)
ORDER

v.
SAM’S WEST, INC. et al.,

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Defendant(s).

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Presently before the court is defendants Sam’s West, Inc. and Wal-Mart Stores, Inc.’s

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(“Wal-Mart”) motion for summary judgment. (ECF No. 32). Plaintiff filed a response (ECF No.

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35), and defendants filed a reply (ECF No. 37).
I.

Introduction

On May 6, 2015, plaintiff filed the present case in Nevada state court, alleging claims
against defendants for negligence and premises liability in relation to a slip-and-fall occurring in
a Sam’s Club store due to a clear puddle located at a checkout counter. (ECF No. 1-1). On October
19, 2015, Wal-Mart Stores, Inc. filed a petition for removal to this court.1 (ECF No. 1). On August
4, 2016, defendants filed the present motion. (ECF No. 32).
In their motion for summary judgment, defendants argue that plaintiff cannot succeed on

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her claim for negligence based on premises liability because she cannot show breach of duty for a

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lack of actual or constructive notice of any hazardous condition. (Id.). Particularly, defendants

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assert that there is no evidence that defendants’ employees created the harmful condition or that

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the condition had been present for an unreasonable amount of time. (Id.).

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Wal-Mart indicates that plaintiff’s request for exemption from arbitration, received
September 25, 2015, was “the first paper from which removability could be reasonably
ascertained.” (ECF No. 1 at 2).
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James C. Mahan
U.S. District Judge

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Further, defendants argue that the store manager who interacted with plaintiff after the

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incident had no foundation for making any probative statement about the presence of the clear

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liquid. (Id.). That manager believed that the substance forming the puddle was from a rotisserie

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chicken container; the records for that checkout register indicated that the prior customer at that

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register had indeed purchased a rotisserie chicken. See (ECF Nos. 32, 32-1, 32-4). Defendants
additionally suggest that there is no evidence on the record that any employee knew about the
puddle before the incident and that seven minutes is an insufficient duration of time to impose
constructive notice. (ECF No. 32).

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Plaintiff responded, contesting that the length of time the puddle had been on the floor and

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its origin were questions proper for jury determination; a failure to inspect the ground in front of a

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checkout counter for seven minutes was unreasonable; and Sprague v. Lucky Stores, Inc., 849 P.2d

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320, 322 (1993), controls because constructive notice is a question for the jury and the checkout

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area was one of “continuous risk.” (ECF No. 35 at 9–11).

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Defendants replied, arguing that Sprague is factually distinguishable from the instant case
and that plaintiff’s assertions regarding the origin of the puddle or its length of existence were
mere speculation and not sufficient to defeat a motion for summary judgment. (ECF No. 37).
II.

Legal Standard

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The Federal Rules of Civil Procedure allow summary judgment when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is “to isolate

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and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323–

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24 (1986).

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For purposes of summary judgment, disputed factual issues should be construed in favor

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of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be

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entitled to a denial of summary judgment, the non-moving party must “set forth specific facts

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showing that there is a genuine issue for trial.” Id.

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In determining summary judgment, the court applies a burden-shifting analysis. “When
the party moving for summary judgment would bear the burden of proof at trial, it must come
forward with evidence which would entitle it to a directed verdict if the evidence went

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James C. Mahan
U.S. District Judge

uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
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(9th Cir. 2000). Moreover, “[i]n 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.” Id.

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By contrast, when the non-moving 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 essential

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element of the non-moving party’s case; or (2) by demonstrating that the non-moving party failed
to make a showing sufficient to establish an element essential to that party’s case on which that
party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving
party fails to meet its initial burden, summary judgment must be denied and the court need not

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consider the non-moving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–

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60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the

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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing
versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,
630 (9th Cir. 1987).
III.

Discussion

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To prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence
of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages. Klasch v. Walgreen

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Co., 264 P.3d 1155, 1158 (Nev. 2011) (citing Sanchez v. Wal–Mart Stores, 221 P.3d 1276, 1280
(Nev. 2009)).

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Although Nevada case law indicates that courts may be wary of granting motions for

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summary judgment in a negligence action because of the importance of questions of fact,

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“summary judgment is proper when the plaintiff cannot recover as a matter of law,” such as the

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successful refutation of an element of plaintiff’s claim. Foster v. Costco Wholesale Corp., 291

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P.3d 150, 153 (Nev. 2012).

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Where a foreign substance causing a slip and fall is made to be on the floor by the
business owner or one of its agents, then liability will lie, as a foreign substance on
the floor is usually not consistent with the standard of ordinary care. Traditionally,
where a foreign substance causing a slip and fall results from the actions of persons

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James C. Mahan
U.S. District Judge

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other than the business or its employees, liability will lie only if the business had
actual or constructive notice of the condition and failed to remedy it.

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FGA, Inc. v. Giglio, 278 P.3d 490, 496 (Nev. 2012) (quotation marks and citation omitted). While

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a property owner or occupant is not required to act as an insurer for visitors, a business has “a duty

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to keep the premises in a reasonably safe condition for use.” Sprague, 849 P.2d at 322.
a. Defendants’ initial burden under summary judgment
This court finds that defendants have satisfied their initial burden by providing evidence
that plaintiff has not shown actual or constructive notice in this case. Celotex Corp., 477 U.S. at
323–24.
First, there is no evidence on the record that defendants or their employees knew of the

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puddle on the floor. Defendant’s manager, Ms. Snyder, has made no admission of knowledge of
the puddle from her statement of disbelief of missing the spill because her sworn declaration

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indicates that she initially had no knowledge of where the puddle was from or whether “any Sam’s

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Club employee had an opportunity to spot the spill by visual inspection.” (ECF No. 32-1 at 3));

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see also JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016)

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(“[A]t summary judgment a district court may consider hearsay evidence submitted in an

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inadmissible form, so long as the underlying evidence could be provided in an admissible form at

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trial, such as by live testimony.”); Fed. R. Evid. 602.
Next, defendants have provided evidence indicating the source of the puddle and the time
it was on the ground in the checkout lane. (ECF No. 32). Ms. Snyder believed that “[t]he substance
appeared . . . to be a mixture of grease and water” from rotisserie chickens sold at the store. (ECF
No. 32-1 at 2); see also (ECF No. 32-4). Notably, plaintiff agrees with the characterization of the

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puddle composition as “oil”: “That’s when [Ms. Snyder] showed me it was oil.” (ECF No. 32-7

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at 19). Furthermore, the sales records from the register of that checkout lane indicate that the

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customer using that lane prior to plaintiff had purchased a rotisserie chicken roughly seven minutes

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before the incident. (ECF Nos. 32-1, 32-5); see also (ECF No. 32) (collecting cases discussing

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different lengths of time a hazard was on the floor of a business establishment).

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Thus, defendants have produced evidence attacking the notice requirement of plaintiff’s
claims. The court now examines whether plaintiff has produced a genuine dispute of material fact.
See Matsushita Elec. Indus. Co., 475 U.S. at 586.

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James C. Mahan
U.S. District Judge

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b. Genuine dispute of material fact

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First, Sprague is factually distinguishable from the instant case. In that case, the Nevada
Supreme Court reasoned:

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Based on the deposition testimony presented to the district court, a reasonable jury
could have found that [defendant] knew that produce was frequently on the floor,
that this produce created a hazard to shoppers, and that sweeping the floor could
not wholly keep the floor free of debris. A reasonable jury could have determined
that the virtually continual debris on the produce department floor put [defendant]
on constructive notice that, at any time, a hazardous condition might exist which
would result in an injury to [defendant’s] customers.

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Sprague, 849 P.2d at 323; see also Forrest v. Costco Wholesale Corp., No. 2:15-cv-00843-RFB-

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CWH, 2016 WL 5402200, at *4 (D. Nev. Sept. 26, 2016) (declining to apply Sprague due to a lack

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of similar evidence on the record).
Here, plaintiff endeavors to analogize the facts of the instant case to those in Sprague by
arguing that the checkout line was a place of “continuous risk.” (ECF No. 35 at 11). This analogy
is unpersuasive because there is no evidence on the record suggesting that the checkout area was

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subject to “virtually continual debris” or that defendants “knew that produce was frequently on the

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floor” at that location in the store. Sprague, 849 P.2d at 323. Therefore, Sprague’s implication

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that the question of constructive notice must be determined by a jury does not extend to this case.

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Id.

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Next, plaintiff submits that there is a genuine question of material fact as to the identity of

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the liquid at issue and the duration of time the puddle was in the checkout lane. (ECF No. 35).

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Particularly, plaintiff discusses the photograph of the puddle, stating that the puddle was smeared
and that there were dark marks next to the liquid. (Id.); see also (ECF No. 32-3). From this,
plaintiff asserts, a jury could find that the liquid was present for a greater duration of time than that

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indicated by defendants; therefore, there is a triable issue of fact regarding constructive notice.
(Id.).

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This court finds that plaintiff either points to no evidence on the record supporting its

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assertion or that its interpretation of the evidence is speculative. British Airways Bd. v. Boeing

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Co., 585 F.2d 946, 952 (9th Cir. 1978). (“A mere scintilla of evidence will not do, for a jury is

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permitted to draw only those inferences of which the evidence is reasonably susceptible; it may

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James C. Mahan
U.S. District Judge

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not resort to speculation.”). Therefore, plaintiff has not overcome its burden to show a genuine

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dispute of material fact regarding notice. Thus, defendants’ motion is meritorious.

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IV.

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Defendants’ evidence that the puddle allegedly causing plaintiff’s harm was produced by

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spillage from a rotisserie chicken about seven minutes before plaintiff approached the checkout

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counter satisfied their initial burden on summary judgment by producing evidence that there was

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no notice of the alleged hazard. Subsequently, plaintiff was unable to show a genuine dispute of

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Conclusion

material fact as to the same.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion for
summary judgment (ECF No. 32) be, and the same hereby is, GRANTED.
The clerk shall enter judgment accordingly and close the case.
DATED February 17, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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