1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 MARLENE STEIN, Case No. 2:21-CV-988 JCM (EJY)
8 Plaintiff(s), ORDER
9 v.
10 COSTCO WHOLESALE CORPORATION dba COSTCO WHOLESALE 685, CLUB 11 DEMONSTRATION SERVICES, INC.,
12 Defendant(s).
13 14 Presently before the court is defendant Costco Wholesale Corporation’s (d/b/a Costco 15 Wholesale 685) motion for summary judgment. (ECF No. 28). Plaintiff Marlene Stein filed a 16 response (ECF No. 29), to which Costco replied (ECF No. 30). The court grants Costco’s motion 17 for summary judgment. 18 I. Background 19 This is a slip-and-fall premises liability case. On February 8, 2019, plaintiff fell while 20 shopping at Costco and subsequently filed this case against it, alleging that she slipped in a foreign 21 substance that Costco had failed to clean. (ECF No. 1-1). The following facts are undisputed. 22 While picking up her prescription at Costco, plaintiff fell inside its warehouse at around 23 1:50 pm. (ECF no. 28 at 5). Plaintiff had walked toward the freezer section of the warehouse and 24 slipped on her way back from that area. (Id.). Plaintiff took the same route there and back but did 25 not notice anything on the floor on her way to the freezer section. (Pl.’s Dep., ECF 28-2 at 10). 26 Costco employees perform hourly safety inspections of the warehouse to ensure the floors 27 are free of hazards, and Costco also posts employees in every section of its warehouse to watch 28 for potential hazards. (ECF No. 28 at 4–5). On the day of plaintiff’s fall, Tawny Hileman, a 1 Costco employee, conducted an inspection from 1:30 pm to 2:13 pm. (Id at 6). It is the routine 2 practice of Costco employees to immediately clean any hazards they find during their hourly 3 inspection. (ECF 28-3 at 8, 9). There is no evidence that anyone else had slipped on a foreign 4 substance prior to the plaintiff, despite the store being extremely busy that day. (ECF No. 28 at 5 6). 6 II. Legal Standard 7 The Federal Rules of Civil Procedure allow summary judgment when the pleadings, 8 depositions, answers to interrogatories, and admissions on file, together with the affidavits (if any), 9 show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment 10 as a matter of law.” Fed. R. Civ. P. 56(a). Information may be considered at the summary 11 judgment stage if it would be admissible at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 12 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). 13 A principal purpose of summary judgment is “to isolate and dispose of factually 14 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In judging evidence 15 at the summary judgment stage, the court does not make credibility determinations or weigh 16 conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving 17 party. See T.W. Electric Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630– 18 31 (9th Cir.1987). 19 When, as is the case here, the non-moving party bears the burden of proof at trial, the 20 moving party can meet its burden on summary judgment in two ways: (1) by presenting evidence 21 to negate an essential element of the non-moving party’s case; or (2) by demonstrating that the 22 non-moving party failed to make a showing sufficient to establish an element essential to that 23 party’s case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. 24 at 323–24. If the moving party fails to meet its initial burden, summary judgment must be denied, 25 and the court need not consider the non-moving party’s evidence. See Adickes v. S.H. Kress & 26 Co., 398 U.S. 144, 159–60 (1970). 27 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 28 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith 1 Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the 2 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 3 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 4 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 5 630 (9th Cir. 1987). 6 However, the nonmoving party cannot avoid summary judgment by relying solely on 7 conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 8 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the 9 pleadings and set forth specific facts by producing competent evidence that shows a genuine issue 10 for trial. See Celotex, 477 U.S. at 324. If the nonmoving party’s evidence is merely colorable or 11 is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, 12 Inc., 477 U.S. 242, 249–50 (1986). 13 III. Discussion 14 A prima facie case for negligence requires the plaintiff to show that (1) the defendant owed 15 the plaintiff a duty of care, (2) the defendant breached said duty, (3) the breach caused the 16 plaintiff’s injury, and (4) the plaintiff was damaged. Joynt v. Cal. Hotel & Casino, 835 P.2d 799, 17 801 (Nev. 1992). In Nevada, a business owes a duty to its patrons “to keep the premises in a 18 reasonably safe condition for use.” Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322 (Nev. 1993). 19 This duty is triggered when there exists a temporary hazardous condition on the property, 20 such as a foreign substance on the floor. Eldorado Club v. Graff, 377 P.2d 174, 176 (Nev. 1962); 21 Asmussen v. New Golden Hotel Co., 392 P.2d 49, 50 (Nev. 1964). If the business’s agent or 22 employee caused the temporary hazardous condition, then “liability may be found upon ordinary 23 agency principles; respondeat superior is applicable, and notice is imputed to the defendant.” 24 Eldorado Club, 377 P.2d at 175. 25 But if a third party caused the temporary hazardous condition, the business is liable only if 26 it had actual or constructive notice of the hazard and failed to remedy it. FGA, Inc. v. Giglio, 278 27 P.3d 490, 496 (Nev. 2012). The business is charged with constructive notice of a hazardous 28 1 condition if a reasonable inspection would have revealed it. Twardowski v. Westward Ho Motels, 2 Inc., 86 Nev. 784, 787, 476 P.2d 946, 947–948 (1970). 3 Plaintiff alleges that an independent contractor (the other defendant named in this suit) 4 operating on Costco’s premises spilled the substance that caused her fall. (ECF No. 29 at 9–10).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 MARLENE STEIN, Case No. 2:21-CV-988 JCM (EJY)
8 Plaintiff(s), ORDER
9 v.
10 COSTCO WHOLESALE CORPORATION dba COSTCO WHOLESALE 685, CLUB 11 DEMONSTRATION SERVICES, INC.,
12 Defendant(s).
13 14 Presently before the court is defendant Costco Wholesale Corporation’s (d/b/a Costco 15 Wholesale 685) motion for summary judgment. (ECF No. 28). Plaintiff Marlene Stein filed a 16 response (ECF No. 29), to which Costco replied (ECF No. 30). The court grants Costco’s motion 17 for summary judgment. 18 I. Background 19 This is a slip-and-fall premises liability case. On February 8, 2019, plaintiff fell while 20 shopping at Costco and subsequently filed this case against it, alleging that she slipped in a foreign 21 substance that Costco had failed to clean. (ECF No. 1-1). The following facts are undisputed. 22 While picking up her prescription at Costco, plaintiff fell inside its warehouse at around 23 1:50 pm. (ECF no. 28 at 5). Plaintiff had walked toward the freezer section of the warehouse and 24 slipped on her way back from that area. (Id.). Plaintiff took the same route there and back but did 25 not notice anything on the floor on her way to the freezer section. (Pl.’s Dep., ECF 28-2 at 10). 26 Costco employees perform hourly safety inspections of the warehouse to ensure the floors 27 are free of hazards, and Costco also posts employees in every section of its warehouse to watch 28 for potential hazards. (ECF No. 28 at 4–5). On the day of plaintiff’s fall, Tawny Hileman, a 1 Costco employee, conducted an inspection from 1:30 pm to 2:13 pm. (Id at 6). It is the routine 2 practice of Costco employees to immediately clean any hazards they find during their hourly 3 inspection. (ECF 28-3 at 8, 9). There is no evidence that anyone else had slipped on a foreign 4 substance prior to the plaintiff, despite the store being extremely busy that day. (ECF No. 28 at 5 6). 6 II. Legal Standard 7 The Federal Rules of Civil Procedure allow summary judgment when the pleadings, 8 depositions, answers to interrogatories, and admissions on file, together with the affidavits (if any), 9 show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment 10 as a matter of law.” Fed. R. Civ. P. 56(a). Information may be considered at the summary 11 judgment stage if it would be admissible at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 12 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001). 13 A principal purpose of summary judgment is “to isolate and dispose of factually 14 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In judging evidence 15 at the summary judgment stage, the court does not make credibility determinations or weigh 16 conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving 17 party. See T.W. Electric Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630– 18 31 (9th Cir.1987). 19 When, as is the case here, the non-moving party bears the burden of proof at trial, the 20 moving party can meet its burden on summary judgment in two ways: (1) by presenting evidence 21 to negate an essential element of the non-moving party’s case; or (2) by demonstrating that the 22 non-moving party failed to make a showing sufficient to establish an element essential to that 23 party’s case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. 24 at 323–24. If the moving party fails to meet its initial burden, summary judgment must be denied, 25 and the court need not consider the non-moving party’s evidence. See Adickes v. S.H. Kress & 26 Co., 398 U.S. 144, 159–60 (1970). 27 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 28 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith 1 Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the 2 opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient 3 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 4 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 5 630 (9th Cir. 1987). 6 However, the nonmoving party cannot avoid summary judgment by relying solely on 7 conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 8 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the 9 pleadings and set forth specific facts by producing competent evidence that shows a genuine issue 10 for trial. See Celotex, 477 U.S. at 324. If the nonmoving party’s evidence is merely colorable or 11 is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, 12 Inc., 477 U.S. 242, 249–50 (1986). 13 III. Discussion 14 A prima facie case for negligence requires the plaintiff to show that (1) the defendant owed 15 the plaintiff a duty of care, (2) the defendant breached said duty, (3) the breach caused the 16 plaintiff’s injury, and (4) the plaintiff was damaged. Joynt v. Cal. Hotel & Casino, 835 P.2d 799, 17 801 (Nev. 1992). In Nevada, a business owes a duty to its patrons “to keep the premises in a 18 reasonably safe condition for use.” Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322 (Nev. 1993). 19 This duty is triggered when there exists a temporary hazardous condition on the property, 20 such as a foreign substance on the floor. Eldorado Club v. Graff, 377 P.2d 174, 176 (Nev. 1962); 21 Asmussen v. New Golden Hotel Co., 392 P.2d 49, 50 (Nev. 1964). If the business’s agent or 22 employee caused the temporary hazardous condition, then “liability may be found upon ordinary 23 agency principles; respondeat superior is applicable, and notice is imputed to the defendant.” 24 Eldorado Club, 377 P.2d at 175. 25 But if a third party caused the temporary hazardous condition, the business is liable only if 26 it had actual or constructive notice of the hazard and failed to remedy it. FGA, Inc. v. Giglio, 278 27 P.3d 490, 496 (Nev. 2012). The business is charged with constructive notice of a hazardous 28 1 condition if a reasonable inspection would have revealed it. Twardowski v. Westward Ho Motels, 2 Inc., 86 Nev. 784, 787, 476 P.2d 946, 947–948 (1970). 3 Plaintiff alleges that an independent contractor (the other defendant named in this suit) 4 operating on Costco’s premises spilled the substance that caused her fall. (ECF No. 29 at 9–10). 5 As a landowner is generally not liable for an independent contractor’s actions, the issue here is 6 whether Costco had constructive notice of a hazardous condition. See San Juan v. PSC Indus. 7 Outsourcing, 240 P.3d 1026, 1028–29 (Nev. 2010) (citing Restatement (Second) of Torts § 409 8 (1965)). 9 The plaintiff has the burden of proving constructive knowledge at trial. See, e.g., Morton 10 v. Wal–Mart Stores, Inc., 2013 WL 557309, at *4–5 (D. Nev. Feb. 12, 2013) (Du, J.), aff'd, 620 11 Fed. Appx. 583 (9th Cir. 2015). Accordingly, at the summary judgment stage, the plaintiff must 12 produce some evidence “that the hazard ‘had existed for a period sufficient to provide the owner 13 with constructive notice.’” Id. at *4. 14 Costco asserts that it did not have constructive notice of the alleged hazardous condition 15 because the condition was present for a short period of time. (ECF No. 28 at 12). Plaintiff seems 16 to argue that, because the substance she slipped on was dry rather than wet, the court can infer that 17 it had been present for a sufficient amount of time to provide Costco with constructive notice.1 18 (ECF No. 29 at 9). 19 But plaintiff provides no evidence that anyone else had seen this foreign substance and 20 plaintiff’s own testimony contradicts her theory. Plaintiff admitted during her deposition that she 21 did not see anything on the floor, or slip on anything, when she had walked through this exact area 22 only moments prior. 23 24 1 This is a charitable reading of plaintiff’s motion, which the court quotes here: “Did Costco have constructive notice of the dried foreign substance on the floor? If the 25 foreign substance was fresh, the jury could conclude that the substance was recently 26 deposited on 27 the floor or because the unknown dried foreign substance would lead a juror to conclude that the 28 store employees missed finding the unknown substance.” (ECF No. 29 at 9). 1 Plaintiff has not met her burden of production regarding constructive notice and cannot 2 now “manufacture” a controversy by creating a dispute with herself on summary judgment. Nelson 3 v. City of Davis, 571 F.3d 924, 927 (9th Cir.2009) (explaining that a party cannot create an issue 4 of fact by contradicting their own prior deposition testimony). 5 In Nevada, a jury may nonetheless charge a business with constructive notice, even if the 6 plaintiff has not produced sufficient evidence, depending on the business’s “mode of operation.” 7 See Sprague, 849 P.2d at 323; FGA, Inc., 278 P,3d at 497. If, for example, a business’s “mode of 8 operation” creates a persistently reappearing hazard, a jury may find that the business had 9 constructive notice because the hazardous condition exists continually.2 Sprague, 849 P.2d at 323. 10 In such cases, periodic inspections—no matter their frequency—are insufficient to create 11 a reasonably safe premise without additional measures to neutralize the hazard. Id. Here, plaintiff 12 does not allege—much less produce evidence—that Costco’s mode of operation created a 13 regularly occurring hazardous condition such that it could be charged with constructive notice of 14 same. Plaintiff did not fall in an area where food and other debris were expected to frequently 15 appear on the floor. 16 Plaintiff also does not dispute that Costco conducted hourly inspections and posted 17 employees in every section of its warehouse to actively watch for and remedy hazardous 18 conditions. Hileman stated that if she had seen a potential hazard during her safety inspection, she 19 would have cleaned it as part of Costco’s routine practice. There is therefore no reasonable dispute 20 that Costco either failed to meet its duty as a landowner or had constructive notice of a potential 21 hazard. 22 IV. Conclusion 23 Accordingly, 24 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Costco’s motion for 25 summary judgment (ECF No. 28) is GRANTED. 26 . . .
27 2 It’s important to note that the Nevada Supreme Court has applied the “mode of operation” 28 approach narrowly, declining to extend it to facts dissimilar to those in Sprague, which involved a self-service produce section where food was frequently on the floor. 849 P.2d at 323. 1 The clerk is instructed to enter judgment as to Costco. 2 DATED September 6, 2023.
3 __________________________________________ UNITED STATES DISTRICT JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28