Buswell v. Wal-mart Stores, Inc
Filing
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ORDER Granting 41 Motion for Summary Judgment. Signed by Judge Richard F. Boulware, II on 11/17/2020. (Copies have been distributed pursuant to the NEF - JQC)
Case 2:19-cv-00211-RFB-EJY Document 56 Filed 11/17/20 Page 1 of 4
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ANGELO BUSWELL,
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Case No. 2:19-cv-00211-RFB-EJY
Plaintiff,
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v.
ORDER
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WAL-MART STORES, INC.
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Defendant.
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I.
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INTRODUCTION
Before the Court is Defendant’s Motion for Summary Judgment. ECF No. 41.
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II.
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FACTUAL BACKGROUND
A. Undisputed Facts
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The Court finds the following facts to be undisputed.
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Plaintiff claims that on October 4, 2017, he slipped but did not fall on a substance at Wal-
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mart Store #2050’s self-checkout area. No one witnessed the slip besides his fiancé. Plaintiff
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testified that he reported the spill to a Wal-mart employee, and the employee cleaned it up.
B. Disputed Facts
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Parties dispute what caused the spill, what the substance was, and how long the substance
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was there.
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Case 2:19-cv-00211-RFB-EJY Document 56 Filed 11/17/20 Page 2 of 4
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III.
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On October 9, 2018, Plaintiff filed the Complaint in the Eighth Judicial District in and for
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PROCEDURAL BACKGROUND
Clark County, District of Nevada under a negligence/premises liability claim. ECF No. 1-1. On
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February 4, 2019, Defendant removed the matter to District Court. ECF No. 1.
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On March 4, 2019, Parties conducted their FRCP 26(f) conference. ECF No. 10. Discovery
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deadlines were extended twice. ECF No. 15, 18. The expert disclosure deadline was September 2,
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2019 and the discovery cut-off date was November 1, 2019. ECF No. 18. Defendant filed this
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instant Motion for Summary Judgment on December 2, 2019. ECF No. 41.
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IV.
LEGAL STANDARD
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Summary judgment is appropriate when the pleadings, depositions, answers to
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interrogatories, and admissions on file, together with the affidavits, show “that there is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering the
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propriety of summary judgment, the court views all facts and draws all inferences in the light most
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favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014).
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If the movant has carried its burden, the non-moving party “must do more than simply show that
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there is some metaphysical doubt as to the material facts.... Where the record taken as a whole
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could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for
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trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citation and internal quotation marks omitted)
(alteration in original).
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V.
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Under Nevada law, a plaintiff must prove four elements to show negligence in a slip-and-
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DISCUSSION
fall matter: (1) the defendant owed a duty to the plaintiff to exercise due care; (2) the defendant
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Case 2:19-cv-00211-RFB-EJY Document 56 Filed 11/17/20 Page 3 of 4
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breached the duty; (3) the breach was the actual and the proximate cause of the plaintiff's injury;
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and (4) the plaintiff was damaged. Joynt v. California Hotel & Casino, 835 P.2d 799, 801 (Nev.
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1992). “[A] business owner 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). A business
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owner will be liable for breaching its duty to patrons if the business owner, or his or her agents,
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cause a foreign substance to spill on the floor. Id. But if any other person causes the foreign
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substance to spill on the floor, the business can only be liable if it had actual or constructive notice
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of the foreign substance and did not remedy it. Id. at 322–23.
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Plaintiff argues that the Defendant cannot show that there is no question of material fact as
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to what the substance was, its source, or how long it was on the floor. Plaintiff also asserts that
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Plaintiff had personal knowledge about the situation, and that the Wal-mart employee cleaned the
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spill which destroyed the opportunity to conclusively identify the substance. Further, Plaintiff
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claims that Defendant is liable because it knew or should have known incidents of this type are
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likely to occur in the the self-checkout area and should have posted a more attentive employee to
supervise the customers, posted more employees to supervise, or installed non-slip surfaces.
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Defendant argues that there is no evidence that shows a genuine dispute as to whether any
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agent or employee of Wal-mart created or knew of the spill prior to Plaintiff’s alleged incident.
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Defendant offers surveillance video that shows a customer arriving at the self-checkout station
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where the Plaintiff’s alleged incident occurs and lifting a leaking jug of clear liquid out of his cart
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and onto the self-checkout. Defendant claim that the about 26 seconds later, the video shows
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Plaintiff arriving to that self-checkout area, and there is insufficient time for Defendant to have
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constructive notice.
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The Court finds that Plaintiff cannot demonstrate a genuine dispute as to whether
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Case 2:19-cv-00211-RFB-EJY Document 56 Filed 11/17/20 Page 4 of 4
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Defendant caused a spill or had actual or constructive notice of a spill. Plaintiff lacks evidence
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necessary to prove his claim. Plaintiff offers no competing evidence to the surveillance video about
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when the spill occurred, how the spill occurred, how long the spill remained on the floor, or
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whether Defendant could have been aware of the spill through reasonable diligence. Plaintiff
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cannot argue for the existence of a disputed fact(s) without offering some evidence to support the
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existence of dispute. Simply arguing a hypothetical is insufficient. Plaintiff asserts that Defendant
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knew or should have known hazards of this type is likely in the self-checkout area and should have
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extra precautions. However, Plaintiff fails to show how the Wal-mart employee who he asserts
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was at the self-checkout was not reasonably diligent and could have prevented the spill or slip.
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Plaintiff also does not provide evidence of past spills or falls at that Wal-mart’s self-checkout area
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that would suggest a chronic hazard of which Defendant would be aware. Absent any evidence of
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causation or notice to create a genuine issue of disputed fact, Plaintiff’s negligence claim
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necessarily fails. See Sprague, 849 P.2d at 323.
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VI.
CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (ECF No.
41) is GRANTED.
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DATED: November 17, 2020.
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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE
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