Fowler v. Wal-Mart Stores, Inc.

Filing 46

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that 19 Wal-Mart's Motion for Summary Judgment be, and the same hereby is, DENIED. Signed by Judge James C. Mahan on 5/24/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LINDA FOWLER,

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Plaintiff(s),

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Case No. 2:16-CV-450 JCM (GWF)
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 (“Wal-Mart” or

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“defendant”) motion for summary judgment. (ECF No. 19). Plaintiff Linda Fowler (“Fowler” or

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“plaintiff”) filed a response (ECF No. 20), to which Wal-Mart replied (ECF No. 24).

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I.

Facts

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The instant action involves a slip-and-fall incident at Wal-Mart’s store at approximately

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2:40 p.m. on October 27, 2013, from which plaintiff sustained injuries. Plaintiff alleges that she

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slipped on a wet substance near the house and garden center, causing her to fall on the ground.

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(ECF No. 1-2 at 3).

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Plaintiff originally filed the complaint in state court on October 8, 2015, alleging one claim

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for relief: negligence. (ECF No. 1-2). Wal-Mart removed the action to federal court on March 2,

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2016. (ECF No. 1).

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In the instant motion, Wal-Mart moves for summary judgment in its favor. (ECF No. 19).
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

James C. Mahan
U.S. District Judge

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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

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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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James C. Mahan
U.S. District Judge

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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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In the instant motion, Wal-Mart argues that summary judgment is proper because Fowler

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failed to set forth any evidence showing that Wal-Mart breached a duty to plaintiff. (ECF No. 19

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at 1, 6–13).

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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. Sanchez ex rel.

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Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009); Harrington v. Syufy Enters.,

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931 P.2d 1378, 1381 (Nev. 1997). “[A] business owes its patrons a duty to keep the premises in a

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

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Therefore, Wal-Mart owed plaintiff a duty of care because Fowler was a customer in defendant’s

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store.

James C. Mahan
U.S. District Judge

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However, a business will be liable in a slip-and-fall due to a foreign substance only (a) if

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

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or (b) if the business had “actual or constructive notice of the condition and failed to remedy it.”

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Id. at 322–23; see also Linnell v. Carrabba’s Italian Grill, LLC, 833 F. Supp. 2d 1235, 1237 (D.

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Nev. 2011).

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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. 19 at 6–13). Wal-Mart argues that no evidence exists to support a finding

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

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plaintiff’s alleged incident. (ECF No. 19 at 7). Further, Wal-Mart argues that no evidence exists

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to support a finding that it created the spill or knew about it prior to plaintiff’s incident. (ECF No.

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19 at 7).

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In response, Fowler argues that genuine issues exist as to whether a Wal-Mart employee

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caused the spill, whether Wal-Mart knew the spill existed and failed to remedy it, and whether the

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spill remained for an unreasonable period of time. (ECF No. 20). Fowler further argues that

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summary judgment is not proper because Wal-Mart has been unable to establish a timeframe as to

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when the spill occurred. (ECF No. 20 at 18). Fowler asserts that the surveillance video shows

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used paper towels placed against the shelf near the area where plaintiff fell, suggesting that Wal-

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Mart knew of the spill. (ECF No. 20 at 15). Fowler further asserts that the photos taken after the

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fall show numerous footprints through the spilled substance, suggesting that the spill was on the

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floor for a prolonged period of time. (ECF Nos 20 at 16; 20-1 at 2–5).

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Plaintiff’s expert noted that Wal-Mart’s guidelines advise its associates to periodically

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walk through their areas to check for safety and cleanliness and that the guidelines enjoins

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associates to zone their areas exclusively between 2:00 p.m. and 4:00 p.m. (ECF No. 20-1 at 65).

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Plaintiff’s expert concluded that plaintiff fell around 2:40 p.m., at which time “the associates would

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properly have been (per their instructions) tidying and arranging merchandise, but not conducting

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safety sweeps.” (ECF No. 20-1 at 65).

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James C. Mahan
U.S. District Judge

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In reply, Wal-Mart contends that the used paper towels appeared well after plaintiff’s

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incident, pointing to the time stamps in the surveillance video. (ECF No. 24). Wal-Mart further

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argues that Fowler set forth no evidence regarding when the last inspection occurred or could have

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occurred. (ECF No. 24 at 8–9). Wal-Mart asserts that plaintiff’s expert admits that the specific

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time period of the spill cannot be ascertained. (ECF No. 24 at 7).

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“Whether [a defendant] was under constructive notice of the hazardous condition is, in

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accordance with the general rule, a question of fact properly left for the jury.” Sprague v. Lucky

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Stores, Inc., 849 P.2d 320, 323 (Nev. 1993). “A defendant may have constructive notice of a

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hazardous condition if a reasonable jury could determine that based on the circumstances of the

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hazard the defendant should have known the condition existed.”

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Commc’ns Las Vegas, Inc., No. 70264, 2017 WL 1328370, at *1 (Nev. App. Mar. 31, 2017).

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Alternatively, a plaintiff could prove constructive notice through evidence that the foreign

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substance was on the floor for an unreasonable length of time before the incident such that

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defendant should have known about it. See, e.g., Eldorado Club, Inc. v. Graff, 377 P.2d 174, 176

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(Nev. 1962).

Chasson-Forrest v. Cox

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“[C]ourts are reluctant to grant summary judgment in negligence cases because

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foreseeability, duty, proximate cause and reasonableness usually are questions of fact for the jury.”

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Lee v. GNLV Corp., 22 P.3d 209, 212 (Nev. 2001) (quotation marks and citations omitted).

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However, defendant is entitled to summary judgment “when plaintiff as a matter of law cannot

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recover.” Id. Thus, defendant may prevail on a motion for summary judgment by negating at least

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one of the elements of negligence. See, e.g., Perez v. Las Vegas Medical Center, 805 P.2d 589,

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591 (Nev. 1991).

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In light of the foregoing and based on the filings, the court finds that Wal-Mart has failed

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to show—by negating one of the essential elements of plaintiff’s negligence claim (i.e., breach)—

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that Fowler cannot recover as a matter of law. Wal-Mart has failed to present any evidence tending

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to negate the element of breach. See Celotex Corp., 477 U.S. at 323–24. In fact, Wal-Mart does

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not assert that its employee did not cause the spill or that its employees lacked knowledge of the

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spill.

James C. Mahan
U.S. District Judge

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Further, Wal-Mart has failed to demonstrate that Fowler failed to make a showing

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sufficient to establish the element of breach. See id. Rather, Wal-Mart merely asserts that the

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evidence fails to raise a genuine issue based on its own interpretation thereof. Such assessments

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of evidence, however, are for the jury to make.

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While evidence of notice is sparse, Fowler has presented some evidence that, if taken in

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the light most favorable to plaintiff, a reasonable jury could find that the spill was on the floor for

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an unreasonable length of time, such that Wal-Mart should have known the spill existed. In

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particular, a reasonable jury could conclude that the spill existed for an unreasonable length of

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time based on the photos of the spill and the report of plaintiff’s expert.
Accordingly, the court will deny Wal-Mart’s motion for summary judgment (ECF No. 19).

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Wal-Mart’s motion for

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summary judgment (ECF No. 19) be, and the same hereby is, DENIED.
DATED May 24, 2017.
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UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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