Coronado v. Costco Wholesale Corporation

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Enedina Coronado, et al., No. CV-18-04184-PHX-SMB 10 Plaintiffs, ORDER 11 v. 12 Costco Wholesale Corporation, et al., 13 Defendants. [14] 15 Pending before the Court is Defendant Costco Wholesale Corporation’s Motion to 16 Dismiss Count Two of Plaintiffs’ First Amended Complaint, (Doc. 23, “Mot.”), under 17 Federal Rule of Civil Procedure 12(b)(6). Plaintiffs filed a Response (Doc. 25, “Resp.”), 18 and Defendant filed a Reply (Doc. 26, “Reply”). Oral argument was held on October 21, 19 2019. (Doc. 35.) The Court has considered the Motion, Response, and Reply and enters 20 the following Order: 21 I. BACKGROUND 22 Plaintiff Enedina Coronado slipped on liquid detergent while shopping at Costco. 23 (Doc. 22 at 1.) Along with her husband, Armando Romero, (“Plaintiffs”) Coronado filed 24 a complaint against Costco Wholesale Corporation (“Defendant”) in Maricopa County 25 Superior Court on October 29, 2018. (Doc. 1-3 at 2-4). Defendant removed. (Doc. 1.) 26 After seeking leave to amend, Plaintiffs filed a First Amended Complaint on May 30, 27 2019. (Doc. 22.) They seek recovery under two distinct legal theories: premises liability 28 and products liability. (Doc. 22.) Defendant moves to dismiss the latter claim under 1 Rule 12(b)(6). 2 II. LEGAL STANDARD 3 Federal Rule of Civil Procedure 8(a) requires that a complaint contain a “short and 4 plain statement of the claim showing that the pleader is entitled to relief.” A complaint 5 must provide the defendant with “fair notice” of the claims against it and the grounds 6 upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting 7 Conley v. Gibson, 355 U.S. 41, 47 (1957)); Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 8 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence of 9 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 10 Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a cognizable legal 11 theory will survive a motion to dismiss if it contains sufficient factual matter, which, if 12 accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, [13] 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570 ). Facial plausibility exists 14 if the pleader sets forth “factual content that allows the court to draw the reasonable 15 inference that the defendant is liable for the misconduct alleged.” Id. “Threadbare 16 recitals of the elements of a cause of action, supported by mere conclusory statements, do 17 not suffice.” Id. Plausibility does not equal “probability,” but requires “more than a 18 sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads 19 facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line 20 between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 21 U.S. at 557). 22 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations 23 are taken as true and construed in the light most favorable to the nonmoving party. 24 Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions 25 couched as factual allegations are not given a presumption of truthfulness, and 26 “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a 27 motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). Generally, a 28 district court “may not consider any material beyond the pleadings in ruling on a Rule 1 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001), 2 overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th 3 Cir. 2002)). 4 III. DISCUSSION 5 Defendant moves to dismiss Count Two of Plaintiffs’ First Amended Complaint. 6 Defendant identifies two independent faults with Plaintiffs’ products liability claim: (1) 7 lack of a cognizable legal theory; and (2) insufficient factual allegations to support a 8 cognizable legal theory. (Mot. at 3.) The Court analyzes each in turn. 9 a. Cognizable Legal Theory 10 Defendant’s argument is three-fold. Defendant first argues that Plaintiffs’ 11 products liability claim is not a cognizable legal theory because Arizona law prohibits 12 Plaintiffs from alleging a products liability claim alongside a premises liability claim. 13 Defendant contends the products liability claim wrongly applies strict liability to a 14 negligence-based premises liability action. (Mot. at 1.) Defendant next claims this 15 proposition is supported by Arizona case law but admits that no Arizona case “addresses 16 th[at] precise question.”1 (Mot. at 3.) Defendant instead looks to out-of-state case law as 17 persuasive authority to support “Arizona’s implicit recognition that there cannot be a 18 strict liability theory in a premises liability case.” (Mot. at 5.) This Court declines 19 Defendant’s invitation to venture onto ground Arizona courts have yet tread. 20 For one, Defendant is incorrect that Arizona law does not permit a plaintiff to 21 bring independent strict liability and negligence claims in the same action. See Shannon 22 v. Butler Homes, Inc., 102 Ariz. 312, 315-17 (1967) (considering a products liability and 23 premises liability claim); Cothrun v. Schwartz, 156 Ariz. 459, 461 (Ariz. App. 1988). 24 Defendant points out that no plaintiff in an Arizona slip and fall case has successfully 25 recovered under a products liability theory. That might be correct. However, Arizona 26 courts regularly permit strict liability claims to accompany premises liability claims like 27 claim here. Regardless, the lack of a case where a slip-and-fall plaintiff brings products 28 1 Indeed, neither party, nor the Court can find an Arizona case preventing a plaintiff from bringing a products and premises liability claim in the same action. 1 liability and premises liability claims in a single cause of action and successfully recovers 2 does not mean the claims cannot be pled together. That past plaintiffs failed does not 3 mean that future plaintiffs cannot succeed as a matter of law. Although the strict liability 4 claims asserted in such cases do not typically survive dismissal or summary judgment, 5 this Court finds no case where Arizona courts hold products liability and premises 6 liability claims are incompatible theories of recovery. See Vega v. Griffiths Const., Inc., [7] 172 Ariz. 46, 48 (Ariz. App. 1992) (rejecting a product liability claim on appeal from 8 summary judgment for failure to prove the product had entered the stream of commerce); 9 Cothrun v. Schwartz, 156 Ariz. at 461 (considering products liability and negligence 10 claims resulting from asbestos contamination on appeal from a grant of summary 11 judgment). While Defendant argues that Arizona courts have never held that a proprietor 12 is strictly liable for all injuries that occur on its premises, they have allowed those claims 13 to proceed past the pleading stage. 14 The Federal Rules of Civil Procedure explicitly authorize litigants to present 15 alternative or inconsistent pleadings. Fed. R. Civ. P. 8(e)(2). A party may set forth 16 multiple statements of a claim or defense “alternatively or hypothetically . . . regardless 17 of consistency.” Id. Rule 8’s liberal pleading policy supports the Ninth Circuit’s 18 historical reluctance to permit one pleading to be read as a judicial admission against an 19 alternative pleading. See Molsenbergen v. U.S., 757 F.2d 1016 , 1018-19 (9th Cir. 1985). 20 With no Arizona case explicitly barring Plaintiffs from bringing products liability and 21 premises liability claims jointly, this Court will not create such a rule. 22 Defendant argues that Arizona case law implicitly recognizes the incompatibility 23 of strict liability and premises liability theories of recovery. This Court is not convinced. 24 Defendant’s cases clearly enunciate some fundamental principles of premises liability— 25 that a business proprietor’s affirmative duty of care is not limitless, and liability is only 26 triggered when specific knowledge requirements are met. They establish that a possessor 27 of a premises is certainly not an insurer of an invitee’s safety, at least as to conditions 28 from which an unreasonable risk of harm is not anticipated. See Berne v. Greyhound 1 Parks of Ariz., Inc., 104 Ariz. 38, 41 (1968) (citing § 343 Restatement of Torts 2nd). 2 These cases do not, however, establish that premises liability is incompatible with strict 3 liability claims as a matter of law—at least in Arizona. At most, Defendant succeeds in 4 reinforcing the distinct requirements of premises liability claims. 5 Defendant’s Arizona cases are also distinguishable. Preuss addresses questions of 6 notice and causation when a plaintiff slipped on a pebble near a building entrance. 7 Preuss v. Sambo’s of Arizona, Inc., 130 Ariz. 288 (1981). Berne is another similar 8 instance. 104 Ariz. at 38 (concerning a slip on a puddle created by liquid dripping off a 9 grandstand). The plaintiffs in each case alleged that some sort of defective condition on 10 the premises supported liability. The Arizona Supreme Court in both cases made the 11 same move. It first found the facts insufficient to support the plaintiffs’ quasi-strict 12 liability claims, then refused to apply strict liability to premises liability claims. Neither 13 the Preuss nor the Berne plaintiff brought a stand-alone strict liability claim. The 14 Arizona Supreme Court in both cases grounded its analysis in a fundamental principle of 15 a negligence or premises liability claim—a “proprietor of a business is not required to 16 keep the premises absolutely safe.” Preuss, 130 Ariz. at 289 (adopting a negligence 17 analysis in finding a possessor of a premises had “an affirmative duty to make the 18 premises reasonably safe”) (emphasis added). Defendant reads this to mean a products 19 liability claim cannot stand alongside a premises liability claim. Properly read, this 20 simply recognizes that premises liability is not strict liability, nothing more. Berne and 21 Preuss based their holdings, in part, on the inability of the plaintiffs to prove their 22 premises liability claims with sufficient facts. Plaintiffs in Preuss and Berne did not even 23 plead under a strict liability theory. Plaintiffs here, of course, do. Neither Preuss or 24 Berne contemplated a theory of products liability. Plaintiffs here ask this Court to 25 contemplate just that. 26 With Arizona law lending little assistance, Defendant turns to out-of-state case law 27 for support. Defendant notes that, when no Arizona law speaks directly to a subject, 28 courts are permitted to look to the law of other states for persuasive authority. See 1 Boswell v. Sup. Ct. In & For Maricopa Cnty., 125 Ariz. 307, 307 (1980). These cases are 2 less persuasive than they first appear. Jones v. Jarvis is illustrative. 437 S.W.2d 189 , 3 190 (Ky. 1969). The plaintiff in Jones asked the Kentucky Court of Appeals to “change 4 the law” and adopt a strict liability principle similar to products liability to avoid “having 5 to establish the length of time that the foreign substance [a banana peel] was on the 6 floor.” Id. The Jones court only reached this argument after finding “no evidence” that 7 “the condition of the banana peel being on the floor was created or traceable to an act of 8 the appellants.” Id. The Jones plaintiff did not bring a products liability claim. Instead, 9 she explicitly asked the court to change the law and do what the Arizona Supreme Court 10 refused to do in Preuss and Berne—improperly adopt a heightened standard to save a 11 factually insufficient negligence claim.2 A similar request on Plaintiffs part here would 12 be treated similarly. 13 The other primary out-of-state case, Bosquez v. H.E. Butt Grocery Co., is also far 14 less prohibitive than Defendant presents. 586 S.W.2d 680, 681 (Tex. Civ. App. 1979). 15 writ refused NRE (Jan. 9, 1980). Although replete with pointed commentary that 16 seemingly decries the application of strict liability theories to slip-and-fall cases, (see 17 Reply at 8), a closer read reveals a nuanced focus on the timing of a product defect and 18 issues of proof in an appeal from a take-nothing judgment after trial. The Bosquez 19 court’s primary concern was with when a product became defective and triggered strict 20 liability, not if recovery based on a product defect was ever appropriate in a slip-and-fall 21 case. The Bosquez plaintiff slipped on spilled baby food from a container that was 22 clearly defective at the time of her accident. But, after discovery and trial, plaintiff could [23] 2 This Court is skeptical that Jones can be read as holding strict liability is de facto 24 incompatible with slip and fall cases. Take a twist on a classic products liability case: the exploding cola bottle. See generally Centineo v. Anheuser-Busch, Inc., 276 So.2d 352 , 25 353 (La. App. 1973); Steele v. Royal Crown Cola Bottling Co., 335 So.2d 586, 587 (Fla. App. 1976). Imagine the prototypical plaintiff in such a case, picks up a cola bottle that 26 promptly explodes and sends shards of glass flying. Miraculously, she is untouched. But in the next, tragically comedic moment, she slips on the spilled cola and is injured. In that 27 case, a premises liability claim would likely fail because the defendant would likely not have enough time to be on notice of a dangerous condition. A products liability claim 28 may, in that example, fail for a variety of reasons. Why the claim should be barred as a matter of law remains unclear. 1 not show how the spill occurred, when the product became defective, or what caused the 2 defect. Specifically, the plaintiff did not carry “the burden of proving that the defective 3 product reached her without substantial change in the condition in which it (was) sold.” [4] Id. at 683 . There, the “plaintiff failed to prove a case of strict liability.” Id. at 683 . Here, 5 Defendant asks this Court to rob Plaintiffs of that opportunity. The Court declines. 6 The Court is satisfied that Plaintiffs’ theories of recovery are legally cognizable to 7 survive Defendant’s motion to dismiss under Rule 12(b)(6). 8 b. Sufficiency of Facts Alleged 9 Defendant next argues that Plaintiffs’ products liability claim fails to allege 10 sufficient facts and should be dismissed under Federal Rule of Civil Procedure 12(b)(6). 11 (Mot. at 10.) Arizona courts recognize products liability claims in three distinct 12 situations: (1) manufacturing defects; (2) design defects; and (3) warning or instruction 13 defects. Brown v. Sears Roebuck & Co., 136 Ariz. 556, 562 (Ariz. App. 1983). Plaintiffs 14 allege a manufacturing defect. To establish a prima facie case for strict products liability, 15 “a plaintiff must show that the product was in a defective condition (when it left 16 defendant’s hands), that the defect made the product unreasonably dangerous, and that 17 the defect was the proximate cause of the plaintiff’s injuries.” Sw. Pet Prods., Inc. v. 18 Koch Indus., Inc., 273 F.Supp.2d 1041, 1051 (D. Ariz. 2003). 19 As it stands, Plaintiffs’ First Amended Complaint reads as little more than a rote 20 repetition of the required elements of a products liability claim. Plaintiffs do not plead 21 facts sufficient to survive Rule 12(b)(6). While Rule 8(a) does not require detailed 22 factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported 23 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 . Count Two of 24 the First Amended Complaint alleges that the detergent container was defective because 25 “it failed to contain the liquid detergent in the container as intended.” (Resp. at 7.) 26 Count Two also incorporates “each and every allegation set forth” in Count One. (Doc. 27 22 at ⁋ 13.) Count One alleges, among other things, that the leaking detergent bottle that [28] caused Plaintiffs’ injury fell and spilled its contents on the ground. (/d. at P 8.) Reading Counts One and Two together, Plaintiffs allege that the detergent bottle was defective □□ because it leaked when it fell. Plaintiffs must allege more to make that assertion 4|| plausible. Without more, Plaintiffs’ complaint reads as a mere “formalistic recitation of 5 || the elements of a cause of action” and are insufficient to survive a motion to dismiss. 6|| Twombly, 550 U.S. at 555 (2007). To survive a motion to dismiss here Plaintiffs must 7\| allege facts that show the product was “defective” or “unreasonably dangerous” at the 8 || time it left the Defendant’s control, not merely reach that conclusion. See Dart v. Wiebe 9|| Mfg., Inc., 147 Ariz. 242, 244 (1985). Barring that, the Court is left with: a bottle fell and 10 || spilled its contents. These facts do not move the needle from “sheer possibility” to 11 || “plausible on its face.” Jqbal, 556 U.S. at 678 ; Twombly, 550 U.S. at 556 . Thus, || Plaintiffs do not allege facts that allows this Court to reasonably infer a manufacturing defect existed. 14 IV. CONCLUSION 15 Accordingly, IT IS ORDERED that Defendants’ Motion to Dismiss Count Two of Plaintiffs’ First || Amended Complaint (Doc. 23) is GRANTED without Prejudice; [18] 19 Dated this 23"? day of October, 2019. [20] 21 See ~P oO fonorable Susan M. Brnovich = 23 United States District Judge [26] 27!) 3 At oral argument, Plaintiffs presented a different facts than those alleged in the First Amended Complaint. The Court only considers the facts as alleged in the complaint. See Schneider v. California Dept. of Corrs., 151 F.3d 1194 , 1197 n.1 (9th Cir. 1998) (“[A] court may not look beyond the complaint to a plaintiff's moving papers.”). -8-