Laygui v. Wal-Mart Stores, Inc.

Filing 23

ORDER: Defendant's Motion for Summary Judgment 13 is GRANTED. The parties' requests for oral argument are DENIED as unnecessary. See formal order. Signed on 7/24/2014 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

FERMINA LAYGUI,
Plaintiff,

v.
WAL-MART STORES, INC.,
Defendant.
Gregory A. Bunnell
Meagan A. Flynn
Preston Bunnell & Flynn, LLP
1200 NW Naito Parkway, Suite 690
Portland, Oregon 97209
Attorneys for plaintiff
Jay R. Chock
John R. Barhoum
Chock Barhoum LLP
121 SW Morrison Street, Suite 415
Portland, Oregon 97204
Attorneys for defendant
Page 1 - OPINION AND ORDER

Case No. 6:13-cv-00327-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Defendant Wal-Mart Stores, Inc., moves for summary judgment on
plaintiff Fermina Laygui's negligence claim pursuant to Fed.

R.

Civ. P. 56. For the reasons set forth below, defendant's motion is
granted and this case is dismissed.
BACKGROUND
On February 21, 2012, plaintiff slipped and fell, injuring her
knee,

while

shopping

in

defendant's

Coos

Bay,

Oregon,

store.

Plaintiff entered the store to purchase "potty pads" for her dogs
and

a

bottle

of

Pine-Sol.

After

leaving

the

detergent

aisle,

plaintiff headed toward the cash registers and tripped; she did not
recall seeing or stepping in any foreign substance at any time
while

in

defendant's

store.

Several

responded to plaintiff after her fall,

of

defendant's

one of whom,

employees
Matt Fyfe,

wiped her foot and told her she had "blue stuff" on her shoe that
"could have been detergent." Laygui Dep. 61:3-6, 62:8-9. Plaintiff
did not touch or smell the substance and had no idea where it
originated from.
After attending to plaintiff,

Fyfe walked to the detergent

aisle and examined the area. He 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 before returning to plaintiff,
who was being assisted by multiple other employees.
video

footage

shows

Fyfe

Page 2 - OPINION AND ORDER

returning to the

detergent

Subsequent
aisle

and

wiping the floor again.
On January 24,
County

Circuit

defendant.

2013,

Court,

plaintiff

alleging

On February 25,

complaint to this Court.

2013,

filed

a

a

complaint

negligence

defendant

On April 23,

2014,

in

claim

Coos

against

removed plaintiff's
defendant moved for

summary judgment.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions,
affidavits, answers to interrogatories, and admissions on file, if
any, show "that there is no genuine dispute at to any material fact
and the [moving party] is entitled to judgment as a matter of law."
Fed R. Civ. P. 56(a). Substantive law on an issue determines the
materiality of

a

fact.

T. W.

Elec.

Servs. ,

Inc.

v.

Pac.

Elec.

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the
evidence is such that a reasonable jury could return a verdict for
the

nonmoving party determines

the

authenticity

of

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

a

dispute.

(1986).

The moving party has the burden of establishing the absence of
a genuine issue of material fact.
U.S.

317, 323

Celotex Corp. v.

Catrett,

477

(1986). If the moving party shows the absence of a

genuine issue of material fact, the nonmoving party must go beyond
the pleadings and identify facts which show a genuine issue for
trial. Id. at 324.
Special rules of construction apply when evaluating a summary

Page 3 - OPINION AND ORDER

judgment motion:

(1) all reasonable doubts as to the existence of

genuine issues

of material

moving

and

party;

(2)

fact

all

should be

inferences

resolved against

to

be

drawn

from

the
the

underlying facts must be viewed in the light most favorable to the
nonmoving party. T.W. Elec., 809 F.2d at 630.

DISCUSSION
This dispute centers on whether defendant was negligent in
maintaining its store premises. In order to prevail on a negligence
claim under Oregon law, an invitee who slips on a foreign substance
in an

occupant's

store must prove

placed there by the occupant;

that:

( 1)

the

substance was

(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,
occupant should have discovered and removed it.

such that the

Van Den Bron v.

Fred Meyer, Inc., 86 Or.App. 329, 331, 738 P.2d 1011 (1987). It is
undisputed that the first circumstance does not apply here.
Pl.'s Resp.

to Mot.

Summ.

J.

at 1-3. As such,

See

summary judgment

hinges on what defendant knew or reasonably should have known about
floor conditions in its store at the time plaintiff was injured.
I.

Actual Knowledge of a Substance on the Floor
Plaintiff

asserts

"that

defendant

had

actual

knowledge

[because the] location of the substance as described by the WalMart
employee

(Fyfe)

- under the shelves - and the fact no bottles of

spilled liquid were

seen on the floor are most consistent with

Page 4 - OPINION AND ORDER

residual substance from an earlier poorly-cleaned spill." Pl.'s
Resp.

to

Mot.

Summ.

at

J.

3.

According

to

plaintiff,

"[t]his

evidence suggests that the detergent under the shelf was the outer
edge of an earlier spill that defendant [knew about and attempted
to clean] but did not clean fully." Id. at 10.
"In order

for

there

to be

a

triable

issue

as

to whether

defendant's conduct did or did not meet the appropriate standard of
care

there must be

Safeway Stores,

evidence

Inc.,

of defendant's

70 Or.App.

183,

186,

conduct."

Dubry v.

689 P.2d 319

(1984).

Speculation and guesswork are not permissible means by which a jury
may find negligence. Griffin v. K.E. McKay's Market of Coos Bay,
Inc.,

125 Or.App.

448,

450-52,

865

P.2d 1320

(1993).

In other

words, it "is not sufficient to impose liability simply because the
material was on the floor." Dubry, 70 Or.App. at 188.
Here, the record is inadequate to create a genuine issue of
material fact under the second circumstance outlined in Van Den
Bron. 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 otherwise. As defendant notes, "[p]laintiff
asks the Court to make a gigantic leap by inferring that these few

Page 5 - OPINION AND ORDER

drops must have come from a prior spill that Wal-Mart cleaned up
[but it]

is just as likely,

if not more likely,

that these drops

came from a bottle of detergent that was leaking [from] a customer
[dropping] it in her cart . . . No one knows." Def.'s Reply to Mot.
Summ. J. at 3.
The Court finds that, given 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
Target

rooted
Corp.,

in
2013

[this
WL

type

of]

5797601,

conjecture."

*4-5

(D.Or.

Feazle-Hurt

Oct.

28,

v.

2013).

Therefore, defendant's motion is granted in this regard.
II.

Reasonably Should Have Discovered a Substance on the Floor
Plaintiff also contends that "the liquid was in the aisle for

long enough that defendant should have discovered and removed it in
the

exercise

of

reasonable

care

either

through

a

scheduled

'safety sweep' or though greater vigilance by the employee shown to
be working in the aisle 30-40 minutes before plaintiff entered."
Pl.'s Resp. to Mot. Summ. J. at 3.
" [I] n

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." Weiskopf v.
Inc.,

271 Or.

630,

632,

533 P. 2d 347

Page 6 - OPINION AND ORDER

(1975)

Safeway Stores,

(collecting cases).

Accordingly, "there must be some evidence of how long the offending
material was on the floor" in order to establish liability. Dubry,
70 Or.App. at 188. Further, 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." Cardenas v.
Wal-Mart Stores,

Inc.,

2014 WL 2949332,

*4

(D. Or. June 27,

2014)

(citing Diller v. Safeway Stores, Inc., 274 Or. 735, 738, 548 P.2d.
1304

(1976); Pavlik v. Albertson's Inc., 253 Or. 370, 374-75, 454

P. 2d 8 52

( 19 69) ) .

If the evidence does not show that the spill

preexisted inspection, "the evidence has no bearing on whether it
was reasonable for the inspecting employee to discover the spill."
Id.
Plaintiff's opposition to summary judgment rests primarily on
the assertion that Wal-Mart should have discovered the detergent
spill based on various procedures and policies it had in place.
See, e.g., Pl.'s Resp. to Mot. Summ. J. at 9; see also Chimeo Dep.
2 4: 9-18;

Lawson

Dep.

3 6: 10-15.

Plaintiff,

however,

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

Page 7 - OPINION AND ORDER

should have remedied the spill.
Nevertheless,

in some cases,

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. See, e.g.,
Stores,

Inc.,

940

F.Supp.2d 1308,

1314-16

Zumbusch v. Wal-Mart
(D.Or.

2013)

(citing

Audas v. Montgomery Ward, Inc., 79 Or.App. 718, 720, 719 P.2d 1334
(1986); Munro v. Richard's Food Ctr.,
739 P.2d 1097
fact,

Inc.,

86 Or.App.

620,

622,

(1987)). Plaintiff here offers no such evidence. In

plaintiff does not remember seeing detergent, or any other

substance,

on the

floor

before,

during

or after her

fall.

See

Laygui Dep. 61:7-22. Indeed, it is not clear from the record before
the Court that her fall was caused by a spilled substance. See Lea
v. Gino's Pizza Inn, Inc., 271 Or. 682, 687-88, 534 P.2d 179 (1975)
(negligence cannot be established in a slip-and-fall case without
evidence showing that a foreign substance on the floor caused the
plaintiff's

fall).

For

this

reason,

the

precedent

on

which

plaintiff relies is distinguishable.
Finally,

to the extent she contends that Fyfe's failure to

complete a witness statement or otherwise internally document her
fall evinces a "belief that Walmart had been negligent with respect
to this spill," plaintiff's argument is unavailing. Pl.'s Resp. to
Mot.

Summ.

J.

would require

at 12. Aside from the fact that such an inference
impermissible

Page 8 - OPINION AND ORDER

speculation,

defendant's

employees'

response to her fall is immaterial to whether one of the theories
of liability articulated in Van Den Bron is satisfied in the case
at bar. Defendant's motion is granted.

CONCLUSION
Defendant's motion for summary judgment (doc. 13) is GRANTED.
The parties' requests for oral argument are DENIED as unnecessary.
This case is DISMISSED.
IT IS

SO ORDJlfa--ftA_

Dated this

f July 2014.

United

Page 9 - OPINION AND ORDER

District Judge