Silvagni v. Wal-Mart Stores, Inc.

Filing 40

ORDER Denying Defendant's 30 Motion for Summary Judgment. Signed by Judge James C. Mahan on 4/6/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CINDY SILVAGNI,

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Plaintiff(s),

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Case No. 2:16-CV-39 JCM (NJK)
ORDER

v.
WAL-MART STORES, INC.,

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Defendant(s).

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Presently before the court is defendant Wal-Mart Stores, Inc.’s (“defendant” or “Wal-Mart

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“) motion for summary judgment. (ECF No. 30). Plaintiff Cindy Silvagni (“plaintiff” or “Silvagni

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“) filed a response (ECF No. 31), to which Wal-Mart replied (ECF No. 33).

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I.

Facts

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The instant action arises from a slip and fall incident that occurred on January 15, 2015 at

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defendant’s store in Las Vegas, Nevada. (ECF No. 1-1). Silvagni alleges that she slipped on a

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gel-like substance in the health and beauty aisle and sustained injuries. (ECF No. 1-1). Silvagni

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alleges that she was injured as a result of the fall and had to undergo cervical fusion surgery. (ECF

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No. 31 at 2).

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Silvagni filed the original complaint in state court on August 3, 2015, wherein she alleged

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on cause of action: negligence/premises liability/failure to warn. (ECF No. 1-1). Wal-Mart

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removed the action to federal court on January 8, 2016. (ECF No. 1).

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In the instant motion, Wal-Mart moves for summary judgment in its favor. (ECF No. 30).

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James C. Mahan
U.S. District Judge

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II.

Legal Standard

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The Federal Rules of Civil Procedure allow summary judgment when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that “there is no genuine dispute as to any material fact and the movant is entitled to a

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is

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“to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317,

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323–24 (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 nonmoving 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, a court applies a burden-shifting analysis. The moving

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party must first satisfy its initial burden. “When the party moving for summary judgment would

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bear the burden of proof at trial, it must come forward with evidence which would entitle it to a

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directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has

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the initial burden of establishing the absence of a genuine issue of fact on each issue material to

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its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)

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(citations omitted).

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By 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 essential

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element of the non-moving party’s case; or (2) by demonstrating that the nonmoving party failed

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to make a showing sufficient to establish an element essential to that party’s case on which that

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party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving

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party fails to meet its initial burden, summary judgment must be denied and the court need not

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consider the nonmoving 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

James C. Mahan
U.S. District Judge

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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

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versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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631 (9th Cir. 1987).

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In other words, the nonmoving party cannot avoid summary judgment by relying solely on

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conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

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for trial. See Celotex, 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 v. Liberty Lobby,

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Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all

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justifiable inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the

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nonmoving party is merely colorable or is not significantly probative, summary judgment may be

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granted. See id. at 249–50.

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III.

Discussion

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Plaintiff Silvagni alleges that Wal-Mart had actual or constructive notice that a dangerous

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condition existed on its premises, that defendant had control and authority over such premises, and

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that defendant failed to warn plaintiff of the danger and failed to remove the dangerous condition.

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(ECF No. 1-1 at 4).

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In the instant motion, Wal-Mart argues that summary judgment is proper because no

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evidence exists to support a finding of actual or constructive notice of the alleged hazardous

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condition. (ECF No. 30 at 7). In particular, defendant argues that no evidence exists to support a

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finding that any agent or employee of Walmart knew or should have known of the spill prior to

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the plaintiff’s alleged incident. (ECF No. 30 at 8). Further, Wal-Mart argues that no evidence

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exists to support a finding that it created the spill or knew about it prior to plaintiff’s incident.

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(ECF No. 30 at 2).

James C. Mahan
U.S. District Judge

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“To prevail on a traditional negligence theory, a plaintiff must demonstrate that ‘(1) the

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defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the breach

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was the legal cause of the plaintiff's injuries, and (4) the plaintiff suffered damages.’” Foster v.

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Costco Wholesale Corp., 291 P.3d 150, 153 (Nev. 2012) (quoting DeBoer v. Sr. Bridges of Sparks

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Fam. Hosp., 282 P.3d 727, 732 (Nev. 2012)).

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“Whether a defendant owes a plaintiff a duty of care is a question of law.” Harrington v.

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Syufy Enters., 113 Nev. 246 (Nev. 1997); see also Sanchez ex rel. Sanchez v. Wal-Mart Stores,

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Inc., 221 P.3d 1276, 1280 (Nev. 2009). The issues of proximate cause and reasonableness usually

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present questions of fact for the jury. Id. Defendant may prevail on a motion for summary

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judgment by negating at least one of the elements of negligence. See, e.g., Perez v. Las Vegas

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Medical Center, 805 P.2d 589, 591 (Nev. 1991).

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Here, Wal-Mart owed plaintiff a duty of care because Silvagni was a customer in

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defendant’s store. “[A] business owes its patrons a duty to keep the premises in a reasonably safe

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condition for use.” Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322 (Nev. 1993). However, a

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business will be liable in a slip-and-fall due to a foreign substance only if the foreign substance

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was on the floor because of actions of the business owner or one of its agents, or if the business

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had “actual or constructive notice of the condition and failed to remedy it.” Id. at 322–23; see also

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Linnell v. Carrabba’s Italian Grill, LLC, 833 F. Supp. 2d 1235, 1237 (D. Nev. 2011).

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As to breach of duty, Silvagni does not allege that defendant created the spill. (See ECF

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No. 1-1). Rather, Silvagni asserts that defendant had actual or constructive notice of the spill. In

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particular, plaintiff asserts that surveillance video exists showing defendant’s employee in the area

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of the fall prior to the incident carrying paper towels. (ECF No. 31 at 9). Silvagni further asserts

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that the surveillance video does not show the area of the fall, but photographs exist showing a

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trashcan was placed upside down over the gel/soap substance. (ECF No. 31 at 8).

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In reply, Wal-Mart argues that evidence indicates that an unidentified female customer

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placed the trashcan over the spill approximately twelve minutes before the incident and that twelve

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minutes is insufficient to establish constructive notice. (ECF No. 33 at 2).

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James C. Mahan
U.S. District Judge

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Silvagni has failed to set forth any evidence suggesting that defendant knew that substances

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like this were frequently on its floors, or that the spill was present for any substantial period of

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time. See, e.g., Morton v. Wal-Mart Stores, Inc., No. 2:12-CV-00155-MMD, 2013 WL 557309,

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at *4 (D. Nev. Feb. 12, 2013), aff’d, 620 Fed. App’x 583 (9th Cir. 2015); Sprague, 849 P.2d at

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323. However, plaintiff has raised a genuine dispute as to whether defendant’s employee placed

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the trashcan over the spill prior to the incident so as to put Wal-Mart on actual notice.

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Specifically, in her response, plaintiff attached defendant’s responses to interrogatories,

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wherein defendant states that “a Walmart associate, Deborah Hisel, placed a garbage can over a

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spill of unknown origin in the Health and Beauty Department . . . to provide warning of the spill

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before the spill was cleared. (ECF No. 31 at 5, 17). Viewing the evidence in a light most favorable

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to plaintiff, a reasonable jury find that defendant’s employee placed the trashcan over the spill

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prior to the incident and could conclude that Wal-Mart therefore was on notice of the spill.

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Wal-Mart argues that the discovery response was later amended and raises various

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evidentiary arguments regarding best evidence and admissibility. (ECF No. 33 at 2–3). Rule

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56(c)(2) provides that “[a] party may object that the materials cited to support or dispute a fact

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cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

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Wal-Mart, however, does not argue that plaintiff cannot establish the information contained in an

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inadmissible form, but rather it argues that the form itself is inadmissible. (ECF No. 33 at 4–5).

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The nonmoving party, here Silvagni, is not required to produce evidence in a form that

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would be admissible at trial in order to avoid summary judgment. See Celotex Corp., 477 U.S. at

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324; Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely disputed must support

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the assertion by . . . citing to particular parts of materials in the record, including . . . interrogatory

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answers.”). The Ninth Circuit has held that information contained in an inadmissible form may

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still be considered for summary judgment if the information itself would be admissible at trial.

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Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253

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F.3d 410, 418–19 (9th Cir. 2001) (“To survive summary judgment, a party does not necessarily

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have to produce evidence in a form that would be admissible at trial, as long as the party satisfies

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the requirements of Federal Rules of Civil Procedure 56.”)); see also, e.g., JL Beverage Co., LLC

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U.S. District Judge

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v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (“[A]t summary judgment a district

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court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying

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evidence could be provided in an admissible form at trial, such as by live testimony.”).

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Based on the foregoing, the court finds that genuine issues exist as to whether Wal-Mart

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had actual or constructive notice of the spill. Accordingly, the court will deny Wal-Mart’s motion

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for summary judgment.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion for

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summary judgment (ECF No. 30) be, and the same hereby is, DENIED.
DATED April 6, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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