Lopez v. Smith's Food & Drug Centers, Inc.

Filing 39

ORDER denying 36 Motion to Compel. Signed by Magistrate Judge Peggy A. Leen on 10/25/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SONIA LOPEZ,

Case No. 2:16-cv-02457-KJD-PAL

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Plaintiff,

v.

ORDER
(Mot Compel Docs – ECF No. 36)

THE KROGER COMPANY, et al.,
Defendants.

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Before the court is plaintiff’s Motion to Compel Disclosure of Documents Pursuant to Fed.

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R. Civ. P. 26 (ECF No. 36). The court has considered the motion, Smith’s Opposition (ECF No.

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37) and plaintiff’s Reply (ECF No. 38).

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The complaint in this case was filed in state court and removed (ECF No. 1) October 20,

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2016. It involves a slip and fall at a Smith’s Food and Drug Store on Maryland Parkway in Las

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Vegas, Nevada on February 18, 2015. In the current motion, plaintiff seeks an order compelling

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the defendants to produce all slip-and-fall incident reports for the five-year period prior to the

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incident at issue. Defendants objected to plaintiff’s discovery request, but produced documents

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concerning prior slip and fall incidents in the front of the store where the ice machine which is the

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alleged source of the liquid on which plaintiff slipped was located for two years prior to this

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incident. There were two prior incidents in December 2014, and defendant produced the incident

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report for them.

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Defendants’ opposition represents that video surveillance of the incident reflects that a

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customer took a bag of ice from the ice machine at the front of the store, turned around and put the

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bag of ice back into the machine and got another bag. The customer looked down as if something

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may have fallen from the bag. A few minutes after the ice cubes spilled, a store employee walked

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by and saw the ice, stopped to secure the area, and called a courtesy clerk who cleaned up the ice.
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Five to six minutes after the courtesy clerk cleaned up the area, the plaintiff is allegedly seen

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walking rapidly through the area in flip flops. Her right foot slid out in front of her and she went

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down onto her left leg with her right arm going back for support and stood back up in less than

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one second. However, the plaintiff claimed that she slipped on ice or water on the ground and fell

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on her face and broke her tooth and suffered a brain injury, which is belied by the surveillance

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video.

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concerning any and all incident reports and related documents pertaining to slip-and-fall incidents

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in the subject store for the five-year period preceding the incident involved in this case is not

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relevant. Plaintiff has no evidence to establish Smith’s had notice of a permanent unsafe condition,

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Under these circumstances, defendants argue that plaintiff’s request for documents

or that the ice machine in the front of the store represents a continuous ongoing problem.

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Plaintiff replies that her request for incident reports and related documents for all areas

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accessible to customers for five years prior to the subject incident is relevant and discoverable.

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Even if the additional incident reports are inadmissible to show defendant had notice of the issue

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because it was a temporary condition, the incident reports for five years prior to the incident are

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relevant evidence of whether defendants adequately trained and supervised its employees on

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documenting and cleaning up spills. Plaintiff acknowledges that the evidence shows that

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employees noticed and attempted to clean up the spill. However, the fact that the plaintiff slipped

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anyway “makes the adequacy of defendants’ training of employees and policies and procedures

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for cleaning up spills relevant.” Although the condition of the floor causing plaintiff’s fall may

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have been temporary, “defendants’ policies and procedures for cleaning up spills were permanent,

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or at least static, at the time the incident occurred.” For these reasons, and the fact that defendants’

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30(b)(6) witness was not adequately prepared to testify about five years of prior incident reports,

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the court should grant the plaintiff’s motion to compel.

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Having reviewed and considered the moving and responsive papers and supporting

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exhibits, the court finds that plaintiff’s request for production no 3 for “copies of any and all

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incident reports, correspondence, writings, lists, regulations, and/or maintenance logs, and/or other

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documentation, specifically relating to any and all slip-and-fall incidents that occurred at the

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Smith’s where the subject incident occurred, for the period of January 1, 2010 through to, and
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including the date of your response to this request” is overbroad, and disproportional to the needs

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of this case. It requests incident reports for all slip and falls in the store for 5 years prior to this

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incident regardless of the type of incident, the nature of the substance involved, and where in the

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store the incidents occurred.

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IT IS ORDERED that plaintiff’s Motion to Compel Disclosure of Documents Pursuant to
Fed. R. Civ. P. 26 (ECF No. 36) is DENIED.
DATED this 25th day of October, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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