Pierucci v. Smith's Food & Drug Centers, Inc.

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ANDREA M. PIERUCCI, Case No. 2:18-cv-01452-MMD-BNW 7 Plaintiff, ORDER v. [8] 9 SMITH'S FOOD & DRUG CENTERS, INC., 10 Defendant. [11] 12 I. SUMMARY 13 This action stems from alleged personal injuries Plaintiff Andrea M. Pierucci 14 sustained due to a slip-and-fall accident while on Defendant Smith’s Food & Drug Centers, 15 Inc.’s (“Smith’s”) premises. Before the Court are Plaintiff’s motion for partial summary 16 judgment as to Defendant’s liability (“Liability Motion” (ECF No. 27)), Defendant’s cross17 motion for summary judgment (“Defendant’s Motion” (ECF No. 29)), and Plaintiff’s motion 18 for partial summary judgment as to damages (“Damages Motion” (ECF No. 28)).1 For 19 reasons discussed below, the Court denies all three motions. 20 II. BACKGROUND2 21 Defendant operates a gas station convenience store in Mesquite, Nevada. (ECF 22 No. 1-1 at 3; ECF No. 27-1 at 2.) The store has a self-service area where customers may 23 get soda, coffee, and other drinks. (ECF No. 27-2 at 5-6.) On October 9, 2017, Plaintiff 24 entered the store to “get a drink from the soda machine.” (ECF No. 29-1 at 4.) After Plaintiff 25 got the drink and began walking to the cash register, she slipped and fell due to liquid on [26] 27 1The Court has reviewed the parties’ respective responses (ECF Nos. 32, 33, 34) and replies (ECF Nos. 38, 39, 41). [28] 2The facts recited are undisputed unless otherwise noted. 2 Lee Robinson, Sandra Brewer, and Lola Stulfus were working. (ECF No. 27 at 6 n.6; ECF 3 No. 29-3 at 4.) The accident was captured on surveillance video. (ECF No. 27-4.) 4 Plaintiff asserts a single claim of negligence against Defendant and seeks general 5 and special damages. (ECF No. 1-1 at 4-5.) 6 III. LEGAL STANDARD 7 “The purpose of summary judgment is to avoid unnecessary trials when there is no 8 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 9 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 10 the discovery and disclosure materials on file, and any affidavits “show that there is no 11 genuine issue as to any material fact and that the moving party is entitled to a judgment 12 as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is 13 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 14 find for the nonmoving party and a dispute is “material” if it could affect the outcome of the 15 suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 16 Where reasonable minds could differ on the material facts at issue, however, summary 17 judgment is not appropriate. See id. at 250-51 . “The amount of evidence necessary to 18 raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the 19 parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897 , 20 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253 , 288-89 21 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all 22 inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. 23 Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 24 The moving party bears the burden of showing that there are no genuine issues of 25 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870 , 883 (9th Cir. 1982). Once the 26 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the 27 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 28 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 2 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404 , 1409 (9th Cir. 1991), 3 and “must do more than simply show that there is some metaphysical doubt as to the 4 material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 6 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 7 Anderson, 477 U.S. at 252. 8 Further, “when parties submit cross-motions for summary judgment, ‘[e]ach motion 9 must be considered on its own merits.’” Fair Hous. Council of Riverside Cty., Inc. v. 10 Riverside Two, 249 F.3d 1132 , 1136 (9th Cir. 2001) (citations omitted) (quoting William 11 W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions, 139 12 F.R.D. 441 , 499 (Feb. 1992)). “In fulfilling its duty to review each cross-motion separately, 13 the court must review the evidence submitted in support of each cross-motion.” Id. 14 IV. LIABILITY MOTION (ECF NO. 27) AND DEFENDANT’S MOTION (ECF NO. 29) 15 The parties, in gist, rely on arguments in their respective motions to seek summary 16 judgment and to oppose summary judgment. The Court will therefore address the parties’ 17 arguments raised in their separate motions collectively. Plaintiff seeks partial summary 18 judgment as to Defendant’s liability, contending that Defendant had both constructive 19 notice of the spill and notice under a mode of operation theory, yet failed to remedy the 20 issue. (ECF No. 27 at 17-19.) Defendant counters that Plaintiff has produced no evidence 21 of constructive notice and that the mode of operation approach does not apply to this case. 22 (ECF No. 33 at 12-14.) As noted, Defendant argues it is entitled to summary judgment on 23 the entire negligence claim, not just on the issue of notice. (ECF No. 29.) Because the 24 Court finds that genuine issues of fact exist as to whether Defendant had notice of the 25 spill—whether constructive or under a mode of operation theory—neither party is entitled 26 /// 27 /// 28 /// 2 To prevail on a cause of action for negligence, a plaintiff must prove “(1) the 3 defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the 4 breach was the legal cause of the plaintiff’s injuries, and (4) the plaintiff suffered damages.” 5 DoBoer v. Sr. Bridges of Sparks Fam. Hosp., 282 P.3d 727, 732 (Nev. 2012). Whether a 6 defendant was negligent is typically a question of fact, and courts are reluctant to grant 7 summary judgment in negligence actions. Harrington v. Syufy Enters., 931 P.2d 1378 , 8 1380 (Nev. 1997). 9 With respect to slip-and-fall cases, a proprietor owes invited guests a duty to keep 10 the premises in a reasonably safe condition for use, and “[t]he presence of a foreign 11 substance on a floor generally is not compatible with [this] standard of ordinary care.” 12 Asmussen v. New Golden Hotel Co., 392 P.2d 49, 49 (Nev. 1964). “Where the foreign 13 substance is the result of the actions of persons other than the business or its employees, 14 liability will lie only if the business had actual or constructive notice of the condition and 15 failed to remedy it.” Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322-323 (Nev. 1993). 16 Constructive notice is generally defined as “[n]otice arising by presumption of law from the 17 existence of facts and circumstances that a party had a duty to take notice of.” Black’s 18 Law Dictionary (10th ed. 2014). Whether constructive notice exists is generally a question 19 of fact for a jury to decide. Sprague, 849 P.2d at 322 . 20 Such is the case here because the Court finds genuine issues of material fact exist 21 as to whether Defendant had constructive notice of the spill. Plaintiff contends that video 22 surveillance of the accident establishes that she did not spill the drink herself and has 23 produced an expert report which concludes that it was physically impossible for Plaintiff to [25] 3The Court thus declines to address Plaintiff’s argument in opposition to 26 Defendant’s Motion that Defendant’s failure to schedule inspections is sufficient to survive summary judgment as to constructive notice. (ECF No. 32 at 6.) The Court also declines 27 to reach the argument in Defendant’s Motion that there is no evidence of actual notice or prior similar incidents. (ECF No. 29 at 7-8.) Plaintiff does not assert these theories in either 28 the Liability Motion or in her response to Defendant’s Motion. (See ECF Nos. 27, 32.) 2 Plaintiff argues, the spill must have come from an employee or a customer. (ECF No. 32 3 at 5; ECF No. 39 at 6-7.) Plaintiff testified that the spill did not seem “to be fresh or a new 4 spill” because it was “dingy”. (ECF No. 39-6 at 3.) Plaintiff also argues that employees 5 should have discovered the spill with a reasonable inspection because Brewer described 6 the spill as “huge”. (ECF No. 27-7 at 5.) 7 However, the surveillance video of the accident does not show how or when the 8 spill was created or the spot of the floor where Plaintiff slipped. (See ECF No. 27-4.) The 9 cause of the spill itself is a matter of dispute—Robinson testified that while she didn’t see 10 Plaintiff slip, she turned around after hearing her fall, noticed that there was soda on the 11 top of the lid of Plaintiff’s drink that was the same color as the liquid on the ground, and 12 concluded that Plaintiff had spilled her own drink and then slipped on the liquid. (ECF No. 13 27-8 at 7-9.)4 Moreover, Defendant contests the size of the spill, pointing to Robinson’s 14 Witness Statement describing it as “a small puddle of soda on the floor” and her testimony 15 that the spill “wasn’t a big one.” (ECF No. 33-1 at 2; ECF No. 33-2 at 6.) Brewer also 16 testified that all employees constantly check for unsafe conditions in the store including 17 liquids on the floor. (See ECF No. 33-4 at 4.) 18 The differing testimonies and statements about how the liquid got on the floor, the 19 size of the spill, and the length it had been on the floor are all material to the issue of 20 constructive notice. A rational trier of fact could reasonably find that the spill was either 21 not caused by an employee or customer, or that it was small and had not been on the floor 22 for very long before Plaintiff fell. A rational trier of fact could reasonably reach a contrary 23 conclusion based on the same evidence, depending on who they find to be more credible. 24 As such, genuine issues of material fact exist as to whether Defendant had constructive [26] 4Plaintiff argues that because Robinson did not actually see the spill, this portion of 27 her testimony is speculative and therefore inadmissible. (ECF No. 27 at 16-17.) The Court disagrees because Robinson’s opinion is “rationally based on [her] perception” of the 28 accident. Fed. R. Evid. 701(a). 2 Next, Plaintiff argues she has established notice under a mode of operation 3 approach because she fell in the self-service area of the store where it was reasonably 4 foreseeable that spills on the floor could occur. (ECF No. 27 at 18.)5 The Nevada Supreme 5 Court has recognized that “there is a modern trend toward modifying this traditional 6 approach to premises liability to accommodate newer merchandising techniques, such as 7 the shift that grocery stores have made from clerk-assisted to self-service operations.” 8 FGA, Inc. v. Giglio, 278 P.3d 490, 496 (Nev. 2012). The court noted that one such 9 approach is “mode of operation,” which “focuses on the nature of the business at issue.” [10] Id. ”[T]he plaintiff satisfies the notice requirement if [s]he establishes that an injury was 11 attributable to a reasonably foreseeable dangerous condition on the owner’s premises that 12 is related to the owner’s self-service mode of operations.” Id. at 496-97 (citation and 13 internal quotation marks omitted.) 14 It is undisputed that Plaintiff fell in or near an area where customers can pour their 15 own drinks. (ECF No. 27-2 at 5; ECF No. 33-4 at 3.) Moreover, Plaintiff has produced an 16 expert report which identified “significant risks” to customers in the self-service area 17 including “spills from drinks”, “leaks from soda, ice, and nearby equipment”, and “ice, 18 melting ice, and liquid hazards.” (ECF No. 27-11 at 8.) Plaintiff also points to testimony 19 from Robinson that employees usually move the mop from the back to the front of the 20 store and have wet floor signs so that they can quickly address spills. (ECF No. 27-8 at 321 5.) Therefore, Plaintiff argues, it was reasonably foreseeable that liquid would spill on the 22 floor in that area. (ECF No. 27 at 18-19.) 23 However, as described supra, the cause of the spill remains in dispute. Moreover, 24 Defendant points to testimony from Robinson, Stolfus, and Brewer that while the counters 25 in the self-service area could get messy, spills on the floor in that area were infrequent. [26] 27 5To the extent Defendant argues that Plaintiff did not include a mode of operation theory in the Complaint (ECF No. 33 at 14), Defendant is wrong. Plaintiff pleaded that she 28 was in a self-service area of the store when she fell. (ECF No. 1-1 at 2-3.) 2 counters”); ECF No. 33-3 at 3 (Stolfus testifying that it was “[n]ot often” that “spills occurred 3 or debris got on the floor in that area”); ECF No. 33-4 at 3 (Brewer says that it was “not 4 often” that they would see spills in that area); ECF No. 33-5 at 3 (Alan Rasmussen— 5 Defendant’s 30(b)(6) deponent—says that he was not aware of any prior spills in that 6 area).) 7 The parties’ proffered evidence demonstrates a genuine issue of material fact as 8 to whether the spill was a reasonably foreseeable dangerous condition associated with 9 Defendant’s self-service mode of operation. A rational fact finder could reasonably 10 determine that the liquid on the floor was not linked to customer self-service in that area, 11 and instead came from a different source. A rational fact finder could also reasonably 12 reach the opposite conclusion. 13 In sum, genuine issues of material fact exist as to whether Defendant had notice 14 of the spill. The Court thus denies Plaintiff’s Liability Motion (ECF No. 27) and Defendant’s 15 Motion (ECF No. 29). 16 V. DAMAGES MOTION (ECF NO. 28) 17 Plaintiff seeks summary judgment as to certain elements of damages, contending 18 that Defendant fails to produce evidence contesting these issues: (1) that Plaintiff’s 19 treatment was reasonable and necessary for her injuries; (2) that her medical care billing 20 amounts are customary and usual for the area of her injury; and (3) the amount needed 21 for her future medical care as set in her life care plan. (ECF No. 28 at 3.) Defendant 22 counters that it has strongly disputed causation and damages, arguing that because the 23 expert report of Dr. Dix concluded that Plaintiff’s injuries are “multifactorial” and involve 24 prior back injuries, a jury must decide if her fall exacerbated her already existing injuries 25 and caused her need for future treatment. (ECF No. 34 at 2-3.) 26 The Court agrees with Defendant. Regardless of whether certain discrete elements 27 of damages are in dispute, causation and apportionment are contested and may 28 drastically change the amount Plaintiff would receive if liability is found. See NRS 1 || 41.141(1)-(2). Plaintiff argues that a disagreement over causation and apportionment 2 || “does not preclude summary judgment in other areas of damages” and cites to the 3 || unpublished Nevada Supreme Court case Didier v Sotolongo as persuasive authority in 4 || support of her argument. (ECF No. 28 at 7.) There, the court affirmed a state district court’s 5 || order granting partial summary judgment on damages where Defendant failed to present 6 || evidence rebutting Plaintiff's medical expert's conclusions that Plaintiff's medical 7 || treatments were reasonable and necessary. Didier v. Sotolongo, No. 76289, 2019 WL 8 || 2339970, at *1 (Nev. May 31, 2019). However, Didier is distinguishable because there, 9 || causation for the plaintiff's injuries had already been established as a matter of law. /d. 10 || Here, Plaintiff concedes that causation and apportionment remain in dispute. (ECF No. 28 11 || at 7-8.) 12 || VI. CONCLUSION 13 The Court notes that the parties made several arguments and cited to several cases 14 || not discussed above. The Court has reviewed these arguments and cases and determines 15 || that they do not warrant discussion as they do not affect the outcome of the motions before 16 || the Court. 17 It is therefore ordered that Plaintiff's motion for summary judgment as to liability 18 || (ECF No. 27) is denied. 19 It is further ordered that Plaintiff's motion for summary judgment as to damages 20 || (ECF No. 28) is denied. 21 It is further ordered Defendant’s cross-motion for summary judgment (ECF No. 29) 22 || is denied. 23 DATED THIS 18" day of May 2020. LL 25 / ~ MIRANDA M. DU 26 CHIEF UNITED STATES DISTRICT JUDGE