Smith et al v. Target Corporation
ORDER: The Court GRANTS Defendant's Motion 13 for Summary Judgment and DISMISSES this matter with prejudice. Signed on 10/11/2016 by Judge Anna J. Brown. See attached 15 page Opinion and Order for full text. (bb) Modified on 10/12/2016 (bb).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAULA SMITH an individual and
LESTER SMITH an individual,
OPINION AND ORDER
TARGET CORPORATION, a foreign
RYAN M. LEE
7327 S.W. Barnes Road
Portland, OR 97225
Attorney for Plaintiffs
WILLIAM H. STOCKTON
Brisbee & Stockton
139 N.E. Lincoln Street
P.O. Box 567
Hillsboro, OR 97124
Attorneys for Defendant
1 - OPINION AND ORDER
This matter comes before the Court on Defendant Target
Corporation’s Motion (#13) for Summary Judgment.
For the reasons
that follow, the Court GRANTS Defendant’s Motion.
The following facts are taken from Plaintiffs’ Complaint,
Defendant’s Concise Statement of Material Facts, and the parties’
summary-judgment materials, and are undisputed unless otherwise
Plaintiff Paula Smith and her daughter Taylor Smith entered
the Defendant’s store located at 10775 S.W. Beaverton Hillsdale
Highway in Beaverton, Oregon, at approximately 4:45 p.m. on
November 27, 2013.
The store was busy because it was the day
While walking down one of the store’s aisles, Paula Smith
stepped on a small, hard object and fell.
Neither Paula Smith
nor her daughter saw or could identify the object that Paula
Smith stepped on.
Target employee Daniela Hopkins saw Paula
Smith fall and came to her assistance immediately.
called a “code green” on her store walkie-talkie and alerted
store supervisors that a guest had been injured.
In less than
one minute several supervisors arrived at Paula Smith’s location.
A supervisor called an ambulance, and other supervisors brought
2 - OPINION AND ORDER
Paula Smith water and a pillow.
One supervisor blocked off the
aisle where Paula Smith was located so other store patrons could
not walk through the area.
Target employees searched the aisle
and floor, including underneath the base decks and in the
corners, in an effort to locate the thing that Paula Smith
slipped on, but they did not find anything.
at Paula Smith’s location within ten minutes of Paula Smith’s
Ultimately Paula Smith was taken by ambulance to the
hospital accompanied by her daughter.
Neither Paula Smith nor
any members of her family returned to the Target store for four
to six weeks after her fall.
On November 16, 2015, Paula Smith and her husband Lester
Smith filed an action in Multnomah County Circuit Court against
Target in which they allege state-law claims for negligence and
loss of consortium.
Plaintiffs served Target with the Complaint
on November 25, 2015.
On December 17, 2015, Defendant removed the matter to this
Court on the basis of diversity jurisdiction.
On July 5, 2016, Defendant filed a Motion for Summary
Judgment as to both of Plaintiffs’ claims.
The Court took the
matter under advisement on September 12, 2016.
Summary judgment is appropriate when “there is no genuine
3 - OPINION AND ORDER
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .
"This burden is not a light one
The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).
disagreement or bald assertion” that a genuine dispute as to a
4 - OPINION AND ORDER
material fact exists “will not preclude the grant of summary
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Defendant moves for summary judgment on the ground that
Plaintiffs have failed to establish Paula Smith’s claim for
Under Oregon law
an invitee who slips on a foreign substance in an
occupant's store must prove that: (1) the
substance was placed there by the occupant;
(2) the occupant knew the substance was on the
floor and failed to remove it; or (3) the
substance had been on the floor for a sufficient
amount of time, such that the occupant should have
discovered and removed it.
5 - OPINION AND ORDER
Laygui v. Wal-Mart Stores, Inc., No. 6:13–cv–00327–AA, 2014 WL
3695536, at *2 (D. Or. July 24, 2014)(citing Van Den Bron v. Fred
Meyer, Inc., 86 Or. App. 329, 331 (1987)).
Paula Smith has not established the item on which she slipped was
placed there by Defendant, that Defendant knew the item was on
the floor and failed to remove it, or that the item had been on
the floor for a sufficient amount of time that Defendant should
have discovered and removed it.
Defendant notes Paula Smith stated in a letter to
Defendant’s insurance carrier, testified at deposition, and
alleged in her Complaint that she did not see the object that she
stepped on, she does not know what object she stepped on, and she
did not have any idea how long the object had been on the floor.
Specifically, in a letter to Defendant’s insurance company Paula
Smith stated in pertinent part:
Per our discussion this morning, I just wanted to
reiterate that on Wednesday, November 27, 2013 I
was shopping in the Target store at 10775 SW
Beaverton Hillsdale Hwy in Beaverton, Oregon
. . . . I stepped down on something with my right
foot. It made me fall. I don't know what I
stepped on. The sensation was hard and slick
against the surface of the floor. Not wet.
Suppl. Decl. of William Stockton, Ex. 2 at 1.
In their Complaint
Plaintiffs allege “Plaintiff PAULA SMITH stepped on a small hard
object. . . .
The size of the object and the crowds prevented
Plaintiff PAULA SMITH from seeing it.”
Compl. at ¶ 5.
Similarly, at deposition Paula Smith testified:
6 - OPINION AND ORDER
I did step down on something with my right foot.
It did make me fall and it was hard. It was
raised above the ground a little, you know, not
like a lot but an amount and it was very slick
against the surf ace of the floor and it was not
* * *
I am not 100 percent certain what I stepped on.
As I said, it was hard. It was raised a little
bit. It was a smallish thing. The sensation is
very, very clear in my mind.
* * *
I didn't know what I stepped on. I am not 100
percent sure what I stepped on, but I am very
certain about ·the sensation of what it was.
Decl. of William Stockton, Ex. A at 7-8.
Paula Smith also
Did you ever see the object?
Did you ever see any object on the floor as
you approached the area where you fell?
Did you ever see any object on the floor
after you fell?
No. Once I fell, I knew I was hurt very
And the object, whatever the object was, do
you have any idea of how long it might have
been on the floor because of some
Do you have any idea of how it came to be on
7 - OPINION AND ORDER
Stockton Decl., Ex. A at 9.
In addition, the record also reflects Defendant’s employees
did not find any object on the floor during their search of the
area immediately after Paula Smith fell, Paula Smith’s daughter
did not see what Paula Smith slipped on, and no object has ever
been identified as the one that caused Paula Smith to fall.
Specifically, Taylor Smith noted:
On November 27, 2013 I went to Target with my
mother twice. . . . We came back to Target [the
second time] to get my prescription and a movie.
My mother and I were walking next to each other
down the aisle between the cards and the
children's department. Suddenly, she wasn't next
to me. I looked down and she was on the ground.
I was shocked. . . . I was so upset I couldn't
even move. . . . I do not know why she fell. It
happened so fast. One second she was beside me
and then she was on the floor. I did not look to
see if she may have stepped on something, or why
she fell, because I was so worried about her.
Stockton Decl., Ex. C at 1.
It is, therefore, undisputed that
Taylor Smith also did not see or discover the object that caused
Paula Smith to fall.
Moreover, Target employee Daniela Corina
Hopkins testified at deposition that she was “pretty close” to
Paula Smith when she fell, she saw Paula Smith fall to the ground
“quickly” and “immediately approached her,” she immediately
notified store supervisors that Paula Smith had fallen, and “less
than a minute” after the notification supervisors began to
8 - OPINION AND ORDER
Stockton Decl., Ex. B at 4-5.
Target employees blocked
off the aisle and conducted a thorough search of the area, but
they did not find anything that could have caused Paula Smith to
slip and fall.
Paula Smith concedes neither she nor her daughter saw what
Paula Smith slipped on.
Paula Smith, however, relies on her
deposition testimony; her Declaration; and the Declaration of
Mark Ososke, an investigator, to establish her negligence claim.
In her deposition Paula Smith testified although she does not
know what she stepped on, “[i]t would be in keeping with like
something plastic or those . . . little hooks that they put on
hats and things to put them on the display that are raised up a
little bit that are plastic.
It was something hard like that but
it was just so slick against the floor but it wasn't wet.”
Stockton Decl., Ex. A at 8.
Paula Smith’s statement, however, is
based on mere speculation because she testified unequivocally
that she does not know what she slipped on.
Paula Smith also relies on her Declaration in which she
testifies she “returned to the Target store . . . after my injury
. . . in an effort to determine what I had slipped on . . . an
object consistent with the sensation I clearly felt under my foot
just before I fell.”
Decl. of Paula Smith at ¶ 2.
I located plastic hat hangers used by Target to
display hats for sale. The hangers are plastic
9 - OPINION AND ORDER
pieces that are attached to the hats. I have
observed the hats hung by these hangers near the
area where I slipped and fell.
I did not see the object I slipped on at the time
I fell, but based upon my observation of the
feeling of the object under my foot, looking and
feeling the hat hangers later at Target, and their
proximity to where I fell , I believe I slipped on
one of Target's hat hangers.
Decl. of Paula Smith at ¶¶ 3-4.
Her testimony, however, does not
establish beyond mere speculation that the item on which she
slipped was a hat hanger placed on the floor by Defendant, that
Defendant knew the item was on the floor and failed to remove it,
or that the item had been on the floor for a sufficient amount of
time that Defendant should have discovered and removed it.
example, Paula Smith does not specify in her Declaration when she
returned to the Target store to conduct her investigation.
deposition, however, Paula Smith testified she did not return to
the Target store for “at least a month or six weeks” after her
fall, and none of her family members returned to the Target store
before that point.
Paula Smith’s investigation, therefore, was
at least four to six weeks after her fall, which is too remote in
time from her fall to establish what item Plaintiff slipped on.
In addition, as Defendant notes, although Paula Smith
testifies the item she slipped on felt like it was “in keeping
with” the hat hooks, she does not indicate she investigated or
attempted to distinguish the feel of numerous other objects that
could be “in keeping” with the feel of the object she slipped on
10 - OPINION AND ORDER
and that would not be unexpected in a crowded retail store the
evening before Thanksgiving such as coins, keys, buttons,
jewelry, or any number of other small, hard objects.
Finally, Paula Smith relies on the Declaration of her
investigator Mark Ososke.
Ososke testifies he went to the Target
store on August 7 and 8, 2016, which is nearly three years after
Paula Smith’s fall.
Ososke testifies he observed approximately
65% of the aisles had debris such as price tags, “plastic
hangers, cardboard containers, merchandise, garbage and other
debris” on the floor.
Decl. of Mark Ososke at ¶¶ 2-3.
testimony, however, does not shed any light on the state of the
aisle where Paula Smith fell three years earlier.
Ososke’s observations do not make it any more likely that the
item Paula Smith slipped on three years earlier was put there by
Defendant or had been on the floor long enough for Defendant’s
employees to have noticed it and failed to remove it.
courts have made clear that “in the absence of proof from which a
jury can draw an inference of how long the substance was on the
floor, there is no basis to find defendant negligent.”
v. Safeway Stores, Inc., 271 Or. 630, 632 (1975) (collecting
In addition, “there must be some evidence of how long
the offending material was on the floor” in order to establish
Dubry v. Safeway Stores, Inc., 70 Or. App. 183, 188
Moreover, to the extent that Ososke’s testimony is meant
11 - OPINION AND ORDER
to establish how often Defendant maintained the area where Paula
Smith fell, it is well-established under Oregon law that “[t]he
regularity of maintenance to the area is irrelevant to
determining how long the substance was on the floor.”
v. Wal–Mart Stores, Inc., No. 3:13–cv–01725–ST, 2014 WL 2949332,
at *4 (D. Or. June 27, 2014)(citing Diller v. Safeway Stores,
Inc., 274 Or. 735, 738 (1976)).
When the evidence does not show
the “spill preexisted inspection, the evidence has no bearing on
whether it was reasonable for the inspecting employee to discover
Courts have concluded in cases under similar circumstances
that the plaintiffs have not established negligence claims.
example, in Laygui v. Wal-Mart Stores, Inc., the plaintiff was
shopping in one of the defendant’s stores when she slipped and
No. 6:13–cv–00327–AA, 2014 WL 3695536, at *1 (D. Or.
July 24, 2014).
The plaintiff “did not recall seeing or stepping
in any foreign substance” in the defendant’s store, but after her
fall an employee mentioned the plaintiff had “blue stuff” on her
shoe that “could have been detergent.”
The employee went to
the detergent aisle and “noticed a small amount of detergent on
the floor, underneath a shelf, with no foot indentation in it.
He proceeded to wipe the area clean.”
The plaintiff filed a
negligence claim against the defendant, who, in turn, moved for
The court granted the defendant’s motion
12 - OPINION AND ORDER
[T]he record is inadequate to create a genuine
issue of material fact. . . . Plaintiff offered
no direct evidence indicating that, at any point
prior to her fall, defendant's employees actually
knew that detergent, or any other substance, had
been spilled on the floor. Nor is there any
direct evidence that plaintiff, in fact, slipped
on a substance on the floor. Moreover, plaintiff
provided no evidence demonstrating there was an
earlier spill that defendant cleaned up, poorly or
Id., at *2.
As to whether the object was on the floor for so
long that the defendant should have discovered it, the court
Plaintiff . . . proffers no evidence concerning
how long the detergent, or any other substance,
had been on the floor prior to her fall. Without
evidence of when the spill occurred, it is equally
as probable that the detergent leaked immediately
before plaintiff's fall as it was that the spill
occurred two hours prior. Weiskopf, 271 Or. at
632. Thus, there is no proof from which a jury
could infer how long the detergent had been on the
floor or whether a scheduled safety sweep could
have or should have remedied the spill.
Id., at *3.
The court noted the case before it was not like
those in which the plaintiff survived summary judgment “by making
reference to the nature of the substance which caused his fall,
to show that the substance had been on the floor for a
substantial period of time.”
In other words, it was not a
situation in which it was clear that the object that caused the
fall had been on the floor for an extended period.
13 - OPINION AND ORDER
[G]iven the record before it, a jury would be
forced to speculate as to whether defendant's
actions or inactions were the impetus of
plaintiff's fall, as well as whether one of
defendant's employees knew of an earlier spill and
failed to properly clean it up. Yet “Oregon
courts do not permit liability findings rooted in
[this type of] conjecture.”
Id., at *3 (quoting Feazle–Hurt v. Target Corp., No. 3:12–cv–
00997–AC, 2013 WL 5797601, at *4–5 (D. Or. Oct. 28, 2013)).
Paula Smith does not proffer any nonspeculative evidence as
to what she slipped on or how long the unknown item had been on
the floor before her fall.
“Speculation and guesswork are not
permissible means by which a jury may find negligence.”
2014 WL 3695536, at *3 (citing Griffin v. K.E. McKay's Market of
Coos Bay, Inc., 125 Or. App. 448, 450–52 (1993)).
On this record the Court concludes Paula Smith has not
established a genuine dispute of material fact exists as to
whether the item on which Paula Smith slipped was placed there by
Defendant, that Defendant knew the item was on the floor and
failed to remove it, or that the item had been on the floor for a
Accordingly, the Court grants Defendant’s Motion for Summary
Judgment as to Paula Smith’s negligence claim.
The Court notes Lester Smith’s claim for loss of consortium
is “derivative of PAULA SMITH’s claim for damages,” and Lester
Smith’s claim arises solely from Paula Smith’s claim for
Because the Court has granted summary judgment for
14 - OPINION AND ORDER
Defendant as to Paula Smith’s negligence claim, the Court also
grants summary judgment for Defendant as to Lester Smith’s claim
for loss of consortium.
The Court, therefore, dismisses this
matter with prejudice in its entirety.
For these reasons, the Court GRANTS Defendant’s Motion (#13)
for Summary Judgment and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 11th day of October, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
15 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?