Elizabeth Teodoro v. Smith's Food & Drug Stores

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2021
• Docket: 20-15629
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELIZABETH TEODORO, No. 20-15629

Plaintiff-Appellant, D.C. No. 2:19-cv-00401-JAD-EJY v.

SMITH'S FOOD & DRUG STORES, INC., MEMORANDUM* DBA Smith's Food & Drugs #311,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted June 9, 2021** Portland, Oregon

Before: WARDLAW, TALLMAN, and HURWITZ, Circuit Judges.

Elizabeth Teodoro (Teodoro) appeals the district court’s grant of summary

judgment on her slip-and-fall claim under Nevada law. We have jurisdiction, 28

U.S.C. § 1291, and review that grant of summary judgment de novo, Braunling v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Countrywide Home Loans, Inc., 220 F.3d 1154, 1156 (9th Cir. 2000). We reverse

and remand.

Teodoro offered no evidence before the district court suggesting that Smith

Food & Drug Stores, Inc. (Smith) or its agents caused the liquid she slipped on to

wind up on the floor. Therefore, “liability will lie only if the business had actual

or constructive notice of the condition and failed to remedy it.” Sprague v. Lucky

Stores, Inc., 849 P.2d 320, 323 (Nev. 1993) (per curiam). Because Teodoro has

never argued that Smith had actual notice of that liquid, she had to raise a dispute

of material fact as to whether Smith “had constructive notice of the hazardous

condition” in order to survive summary judgment. Id. Whether a business

possesses constructive notice is generally “a question of fact properly left for the

jury.” Id.

Viewing the record in the light most favorable to Teodoro, such a dispute

existed here based on the witness statement of Franklin Haley. While working at

his station 15 feet away from Teodoro, Haley “watched [Teodoro] step” and saw

“her foot slip[] out from under her.” He then “looked to the floor and saw a puddle

of clear water approximately 4 inches in diameter.” He then “grabbed a roll of

paper towels” and went over to Teodoro. This series of events sufficed to raise a

triable issue as to Smith’s constructive notice given that Haley apparently could

see the puddle of water from his workstation. See 62A Am. Jur. 2d Premises

2 Liability § 503 (“Constructive knowledge may also be shown where, because of

the location of the accident, it can be inferred that the store’s employees could and

should have seen the actual spilling of the liquid or the liquid on the floor after it

was spilled, in time to remove or alert others to its existence.”); id. § 505

(“Constructive knowledge of . . . debris or litter constituting [a] dangerous

condition may . . . be shown where a store employee was in the immediate vicinity

of the dangerous condition and could have easily seen and removed the hazard.”).

REVERSED AND REMANDED.