Zumbusch v. Walmart Stores, Inc.

Filing 28

OPINION AND ORDER: Denying Motion for Summary Judgment 15 . Signed on 4/17/2013 by Magistrate Judge Janice M. Stewart. (ST)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
THERESA ZUMBUSCH,
Plaintiff,
No. 3:12-cv-837-ST
v.
OPINION AND ORDER
WAL-MART STORES, INC., a Delaware
Corp.,
Defendant.

STEWART, Magistrate Judge:
INTRODUCTION
Plaintiff, Theresa Zumbusch (“Zumbusch”), filed a Complaint in the Circuit Court of the
State of Oregon for the County of Multnomah alleging one claim for negligence against
defendant, Wal-Mart Stores, Inc. (“Wal-Mart”), arising from injuries that she suffered on
July 28, 2010, when she slipped and fell. Pursuant to 28 USC § 1441(a), Wal-Mart timely
removed the case to this court based on diversity jurisdiction pursuant to 28 USC § 1332(a)(1).
Zumbusch then filed a First Amended Complaint alleging the same claim for negligence (docket
#8).
All parties have consented to allow a Magistrate Judge to enter final orders and judgment
in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #13).

1 – OPINION AND ORDER

Pursuant to FRCP 56(c), Wal-Mart has filed a Motion for Summary Judgment (docket
#15). For the reasons set forth below, that motion is DENIED.
STANDARDS
FRCP 56(c) authorizes summary judgment if “no genuine issue” exists regarding any
material fact and “the moving party is entitled to judgment as a matter of law.” The moving
party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 US 317,
323 (1986). Once the moving party does so, the nonmoving party must “go beyond the
pleadings” and designate specific facts showing a “genuine issue for trial.” Id at 324, citing
FRCP 56(e). The court must “not weigh the evidence or determine the truth of the matter, but
only determine[] whether there is a genuine issue for trial.” Balint v. Carson City, 180 F3d 1047,
1054 (9th Cir 1999) (citation omitted). A “‘scintilla of evidence,’ or evidence that is ‘merely
colorable’ or ‘not significantly probative,’” does not present a genuine issue of material fact.
United Steelworkers of Am. v. Phelps Dodge Corp., 865 F2d 1539, 1542 (9th Cir), cert denied,
493 US 809 (1989) (emphasis in original) (citation omitted). The substantive law governing a
claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F3d
1130, 1134 (9th Cir 2000) (citation omitted). The court must view the inferences drawn from the
facts “in the light most favorable to the nonmoving party.” Farrakhan v. Gregoire, 590 F3d 989,
1014 (9th Cir 2010), citing Anderson v. Liberty Lobby, Inc., 477 US 242, 255 (1986).
As both parties agree, Oregon law applies to this case based on diversity jurisdiction.
See, e.g., Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 709 F3d 872, 886 (9th Cir 2013).
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2 – OPINION AND ORDER

UNDISPUTED FACTS
In July 2010, Zumbusch was employed by Mosaic as a “merchandiser.” Zumbusch
Depo.,1 pp. 38-40. Her job was to go into retail stores and conduct product audits for various
companies. Id. She paid a weekly visit to the Wal-Mart store in Portland to “monitor” the
store’s display of Hewlett-Packard products. Id, pp. 39-40. That audit included checking on the
products on display, including printers and laptops, and determining whether ink supplies were
in stock and were in old or new boxes. Id, p. 40. Zumbusch had been in the Wal-Mart store
“[h]undreds of times” doing audits. Id, p. 44. When she finished auditing a display, she checked
in with the manager of the electronics department who would sign her report. Id.
From time to time, Zumbusch also shopped while still in the store. Zumbusch Aff.,
(docket #24) ¶ 4. She usually shopped after finishing her audit, but sometimes before starting,
she would grab a protein bar or something to drink, depending on the time of day. Id.
On Wednesday, July 28, 2010, at about 2:40 pm, Zumbusch entered the Wal-Mart store
to perform a merchandise audit of Hewlett-Packard products. Zumbusch Depo., pp. 107-08, 127.
She intended to observe the Hewlett-Packard display to determine what products needed to be
updated or restocked. Id, pp. 38-39. However, shortly after entering the store, she slipped and
fell. Id, p. 109.
While sitting on the floor, she saw, in “an area about 3 or 4 inches wide and 12 to 18
inches long,” a “series of small puddles. Some were elongated, some were circular, some were
the size of a quarter, some larger, some smaller.” Zumbusch Aff., ¶ 1; see also Zumbusch Depo.,
pp. 117, 121-22. “Each small puddle appeared to be encircled by sandy dirt that had dried
around the edges of each puddle.” Zumbusch Aff., ¶ 2; see also Zumbusch Depo., pp. 122-23,
1

Portions of Zumbusch’s deposition and other witnesses’ depositions are attached to the declarations of John
Barhoum (docket #17) and Garry L. Kahn (docket #25). Citations to deposition testimony are to the page numbers
of the deposition transcript.

3 – OPINION AND ORDER

126. The liquid appeared to be “clear water.” Zumbusch Aff., ¶ 2. Because the rest of the floor
was clean, “it appeared as though something on wheels had been pushed through it and, perhaps
the dirt on wheels had tracked and spread the liquid away from the original spill.” Id. However,
she did not see any cart tracks. Zumbusch Depo., p. 126. Photographs were taken of the spill
about 15-20 minutes after Zumbusch fell, but can no longer be located. Zumbusch Depo.,
pp. 111, 114; Cox Depo., pp. 22-24.
Other customers were in the store that day. Zumbusch Depo., p. 127. She did not see the
liquid on the floor before she fell and does not know how it got there. Id, p. 110.
Wal-Mart’s policy is for all employees to take responsibility for cleaning up spills.
Burley Depo., pp. 15-17; Kahn Decl., Exs. 9, 13-20. It was customary for a maintenance worker
to do a safety sweep with a 36” broom mop two or three times a day, which he currently does
either at 11:00 am or 1:00 pm or both. Id, pp. 21-25. The “front-end” supervisor at the time,
Tiffany Rainy, walked through that area maybe 20 times on an average day. Rainy Depo., pp. 56. It is the store’s policy to regularly check the aisles for safety every hour. Id, p. 19.
DISCUSSION
Wal-Mart makes two arguments in support of summary judgment. First, it argues that at
the time of her injury, Zumbusch was a licensee, not an invitee, and that Wal-Mart did not breach
its duty of care to a licensee. Second, even if Zumbusch was an invitee, Wal-Mart argues that
she has submitted no evidence that Wal-Mart breached its duty of care to an invitee. After a
careful review of the record and consideration of the arguments at the hearing, this court
concludes that the evidence does not permit the inference that Zumbusch was a licensee, and
instead permits only the conclusion that she was a business visitor invitee. This court further
concludes that Zumbusch’s testimony is sufficient to create a material issue of fact concerning

4 – OPINION AND ORDER

the length of time the substance in which Zumbusch slipped had been on the floor, precluding
summary judgment in favor of Wal-Mart.
I. Licensee v. Invitee
Whether Zumbusch was a licensee or invitee is relevant to the standard of care applicable
to Wal-Mart. Johnson v. Short, 213 Or App 255, 260, 160 P3d 1004, 1008 (2007) (the duty of
care that a landowner owes to a visitor entering its property depends on the visitor’s status).
A “licensee” is a visitor “who comes upon the premises for her own purposes with the
consent of the possessor.” Rich v. Tite-Knot Pine Mill, 245 Or 185, 191, 421 P2d 370, 373
(1966) (citation omitted). Rather than extending an “invitation” to the visitor, the landowner
merely gives “permission” for the visitor’s presence. Cassidy v. Bonham, 196 Or App 481, 486,
102 P2d 748, 751 (2004). The possessor owes a duty to a licensee only “to put his premises in a
safe condition” and has no duty “to disclose to the licensee any concealed, dangerous conditions
of the premises of which he has knowledge. Id (citations omitted).
In contrast, an “invitee” is a visitor “who comes upon the premises for business which
concerns the occupier, with the occupier’s invitation, expressed or implied.” Rich, 245 Or at
191-92, 421 P2d at 374. The occupier owes greater duties to the invitee “to warn of latent
dangers” and also “to protect an invitee against those dangers in the condition of the premises of
which he knows or should have known by the exercise of reasonable care.” Id at 192, 421 P2d at
374 (citation omitted).
Oregon has adopted the following two tests for determining whether a person is an
invitee:
Under the first, the “economic advantage” test, anyone who comes
on the premises for business that concerns the occupier, with the
occupier’s express or implied invitation, is an invitee. Under the
second, the “invitation” test, a person is an invitee when the

5 – OPINION AND ORDER

occupier, expressly or impliedly, leads the person to believe that it
intended visitors to use the premises for the purpose that the person
is pursuing and that the use was in accordance with the intention or
design for which the premises were adapted or prepared.
Walsh v. C & K Market, Inc., 171 Or App 536, 539, 16 P3d 1179, 1181 (2000) (citations
omitted)
In this regard, Oregon refers to the RESTATEMENT (SECOND) OF TORTS, § 332 (1974),
which uses “somewhat different terms.” Id at 539, 16 P3d at 1181. That section provides as
follows:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain
on land as a member of the public for a purpose for which the land
is held open to the public.
(3) A business visitor is a person who is invited to enter or remain
on land for a purposes directly or indirectly connected with
business dealing with the possessor of the land.
“A person whom section 1132 calls a ‘public invitee’ is, under the Oregon cases, an
invitee under the invitation test, while a person whom section 1132 calls a ‘business visitor’ is an
invitee under the economic advantage test.” Id at 540, 16 P3d at 1182. A customer, who enters
the store either to buy or browse provides the classic example of a “public invitee” because
“store owners want to encourage as many people as possible to view their goods and become
purchasers.” Id at 542, 16 P3d at 1182. “The same conclusion follows under the economic
advantage test” which does not require “that the visitor’s purpose be to enter into immediate
business dealing with the occupiers. Rather those who enter merely to look at the goods
displayed are also business visitors.” Id.
Wal-Mart asserts that because it did not invite Zumbusch to enter its store, she was there
entirely on her own initiative and, thus, was a licensee. As such, Wal-Mart’s duty of care to her

6 – OPINION AND ORDER

was to warn only of known, latent dangers. It is undisputed that Wal-Mart had no knowledge
that any water was on the floor where Zumbusch slipped and fell. Therefore, if Zumbusch is a
licensee, then Wal-Mart cannot be held liable to her as a matter of law.
Both parties agree that Oregon has not yet addressed the precise factual scenario
presented by this case. However, a similar situation arose in at least one other jurisdiction. In
Miller v. Wal-Mart Stores, Inc., No. 01-CV-0709 (ND Okla, March 13, 2003), aff’d, 87 Fed
Appx 139 (2004) (applying Arkansas law), the plaintiff was an employee of Rayovac and
entered a Wal-Mart store for the purpose of “merchandising” Rayovac products by distributing
coupons. After completing her task, the plaintiff walked through the dairy aisle and fell on a
clear liquid, causing her injuries. The trial court ruled that the plaintiff was a licensee because
she “was not induced to come onto the property for the business benefit of Wal-Mart.” Id at *4.
Rather, she “went on the property for her own business purposes” of monitoring and
merchandising Rayovac products.
Miller is somewhat compelling, given its strikingly similar facts. However, this court
finds no support for the conclusion that Zumbusch was a licensee under Oregon law. In
Johnson, some four years after Miller, the Oregon Court of Appeals found that a delivery driver
who routinely delivered packages to a person’s home for at least five years was a “business
visitor invitee” under the “economic advantage” test. The critical inquiry was “whether, at the
time that plaintiff was injured, he [or she] was on defendants’ premises pursuant to an express or
implied invitation and whether his [or her] presence was of material benefit to defendants.” Id at
264, 160 P3d at 1010. The court found an implied invitation based on:
plaintiff’s regular provision of services beneficial to defendants
over a period of years and defendants’ ongoing acceptance,
without objection or qualification, of those beneficial services

7 – OPINION AND ORDER

which were, necessarily, dependent on plaintiff’s entry onto
defendant’s property.
Id.
Wal-Mart argues that Zumbusch was a licensee because its store was “merely the
location” of Zumbusch’s audit on the day she was injured. It insists that Zumbusch entered the
store for the benefit of Mosaic and Hewlett-Packard and entirely at her own initiative,
unscheduled and unannounced. However, as in Johnson, this court cannot ignore the fact that
Zumbusch regularly entered Wal-Mart to perform her audits which also materially benefitted
Wal-Mart. The record reveals that Zumbusch entered Wal-Mart “hundreds” of times performing
product audits, usually on a weekly basis. Wal-Mart was aware of her visits and signed off on
her weekly reports. Those audits benefitted not only Mosaic and Hewlett-Packard, but also
benefitted Wal-Mart by maximizing the sale of Hewlett-Packard products within the store. The
services she performed of stocking and updating Hewlett Packard merchandise for sale by WalMart fit well within the “business visitor invitee” by implied invitation described in Johnson:
“[I]nvitee” status need not be express – it may also be implied –
and the totality of the undisputed circumstances here establishes an
implied invitation. . . .
The totality of the circumstances here – the frequency and
regularity of plaintiff’s business-related visits over an extended
period of time and defendants’ unqualified acceptance of the
material fruits of those visits – gave rise to an implied invitation.
Id.
Under Johnson, the only reasonable conclusion to be drawn from the evidence is that
Zumbusch was a business visitor invitee at the time she entered Wal-Mart, slipped, and fell.
Accordingly, to the extent it is premised upon the argument that Zumbusch was a licensee at the
time of her injury, Wal-Mart’s motion for summary judgment is denied.
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8 – OPINION AND ORDER

II. Length of Time
Wal-Mart also contends that Zumbusch’s claim fails even if she is an invitee. A plaintiff
who slips and falls on a foreign substance must prove:
(1) that the substance was placed there by the occupant, or (2) that
the occupant knew that the substance was there and failed to use
reasonable diligence to remove it or (3) that the foreign substance
had been there for so long that the occupant should, in the exercise
of reasonable diligence, have discovered and removed it.
Van Den Bron v. Fred Meyer, Inc., 86 Or App 329, 331, 738 P2d 1011, 1012 (1987) (citations
omitted; emphasis in original).
Zumbusch concedes that she has no evidence under the first and second prongs of this
test. However, she contends that she has presented sufficient evidence to create an issue of fact
that the foreign substance was on the floor for a long enough time that Wal-Mart should have
known it was there. This court agrees.
Two Oregon cases are particularly instructive on this issue. In Audas v. Montgomery
Ward, Inc., 79 Or App 718, 720, 719 P2d 1334, 1335 (1986), plaintiff slipped and fell after
stepping in a liquid substance on the floor which “was either melted ice cream, a chocolate
milkshake, or an Orange Julius.” The trial court granted judgment n.o.v. in the face of testimony
that the substance had “a kind of a glaze over the top of it,” “was gooey,” and had “areas around
the puddle that looked almost dry * * * or crusted over.” Id. The Court of Appeals reversed,
relying on evidence that “the liquid substance had crusted over and had begun to dry.” Id at 727,
799 P2d at 1335. “Although there was no expert testimony indicating the time that it would take
for such crusting and drying to begin, the jury could reasonably infer, based on common
knowledge, that [the] liquid substance would have to [have been] on the floor more than a short
time to assume that appearance.” Id.

9 – OPINION AND ORDER

In Murno v. Richard’s Food Ctr., Inc., 86 Or App 620, 622, 739 P2d 1097, 1098 (1987),
decided a year after Audas, the Court of Appeals considered a case in which the plaintiff slipped
on “grapes on the tile floor, some of which were ‘compressed to the point that they were merely
a slimy substance on the floor.’” The mere fact that the grapes were a “slimy substance on the
floor” was not enough to indicate the length of time they had been there. Id at 623, 739 P2d at
1099. However, other testimony was sufficient to create a jury question as to whether the grapes
had been on the floor long enough that the store should have known of it and taken measures to
alleviate the dangerous condition, namely that there were “black marks through the area which
appeared to be grapes which had been run over repeatedly by shopping carts,” that plaintiff was
not using a grocery cart, and that “those grapes that had not been run over were ‘dirty as though
they had been kicked around.” Id at 624, 739 P2d at 1099.
These cases exemplify the distinction explained in a more recent case decided by the
District of Maryland:
[T]here is a substantive and logical difference between the cases
wherein the condition of a foreign substance, by its nature, supplies
clues as to how long it has been in place and those which do not.
The cases [in which the condition of the substance raises no
inference as to how long it has been there] simply do not dictate a
general rule that under no circumstance does the condition of a
foreign substance raise an inference as to how long it has been at
the place that it is found.
Kurtz v. Wal-Mart Stores, Inc., 338 F Supp2d 620, 621 (D Md 2004).
Citing Audas and two other cases, the court determined that plaintiff’s testimony “that the
spill on which she slipped had begun to dry at the edge is at least some evidence from which a
reasonable inference could be drawn that the liquid had been on the floor a sufficient length of
time for a person under a duty of care to discover it to have done so.” Id at 620-21, citing Audas,
79 Or App at 720, 719 P2d at 1335 (substance was “gooey, had a glaze over the top and was

10 – OPINION AND ORDER

crusted over”), Smith v. Wal-Mart Stores, Inc., 6 SW3d 829 (Ky 1999) (condition of blue liquid
from blue slushy drink normally found in a semi-frozen state enough to create reasonable
inference that it had remained on floor long enough for ice to melt), and Foley v. F.W.
Woolworth, 293 Mass 232, 199 NE 739 (1936) (“consistency of vomit on a stairway, being
partly dry and hard, warranted an inference that it had been on the stairway long enough to be
discovered”).
Likewise, Zumbusch has offered testimony sufficient to create the reasonable inference
that the substance in which she slipped had been on the floor long enough to begin to dry: “Each
small puddle appeared to be encircled by sandy dirt that had dried around the edges of each
puddle.” Zumbusch Aff., ¶ 1; see also, id, ¶ 2; Zumbusch Depo., pp. 117, 121-22, 126. Under
Audas, Murno, and Kurtz, this testimony precludes summary judgment in favor of Wal-Mart.
ORDER
Accordingly, Wal-Mart’s Motion for Summary Judgment (docket # 15) is DENIED.
DATED April 17, 2013.
s/ Janice M. Stewart
Janice M. Stewart
United States Magistrate Judge

11 – OPINION AND ORDER