1 WO 2 3 4 5
9 Martha Torres, No. CV-22-00841-PHX-JAT
10 Plaintiff, ORDER
11 v.
12 QuikTrip Corporation, et al.,
13 Defendants. 14 15 Pending before the Court are Defendant QuikTrip Corporation’s (“Defendant”)1 16 Motion for Summary Judgment, (Doc. 65), and Plaintiff Martha Torres’ (“Plaintiff”) 17 Motion for Spoliation Sanctions, (Doc. 66). Both motions are fully briefed. (Docs. 68, 69, 18 70, 71). The Court now rules on the motions. 20 On December 6, 2019, Plaintiff stopped at a QuikTrip around 1:00 AM. (Doc. 65 at 21 2; Doc. 70 at 15). According to Plaintiff, while in the gasoline bay area, Plaintiff slipped 22 on a liquid substance and fell. (Doc. 65 at 2; Doc. 70 at 15). Plaintiff did not notice any wet 23 1 In addition to QuikTrip, Plaintiff names numerous fictitious defendants. (Doc. 1-3 at 2 24 (naming John Does and Jane Does I-X, ABC Corporations I-X, and XYZ Partnerships I- X)). “Generally, the Federal Rules of Civil Procedure do not permit the use of Doe 25 defendants.” Ivan v. Wells Fargo Bank, N.A., CV 12-1065-PHX-JAT, 2012 WL 3095050, at *2 (D. Ariz. July 30, 2012) (citing Fed. R. Civ. P. 10(a)); see also Craig v. U.S., 413 26 F.2d 854, 856 (9th Cir. 1969); Indian Hills Holdings, LLC v. Frye, No. 3:20-cv-00461- BEN-AHG, 2021 WL 1139419, at *9 (S.D. Cal. Mar. 25, 2021). Plaintiff has not offered 27 a persuasive reason to depart from Rule 10. The Court will therefore utilize the singular shorthand of “Defendant” to refer to QuikTrip throughout this Order, reflecting its status 28 as the only properly pleaded defendant in this matter. Further, the fictitious defendants will be dismissed below. 1 spots on the ground prior to her fall but believes that “the substance she slipped and fell on 2 was oil.” (Doc. 65-1 at 47; Doc. 70 at 8). 3 After falling, Plaintiff took photos of the liquid, left the QuikTrip, and went home. 4 (Doc. 65-1 at 53, 56, 61). However, Plaintiff returned to the QuikTrip around 4:00 PM and 5 made a report. (Doc. 65-1 at 60-61). Plaintiff testified that when she returned, she saw sand 6 on the spot where she fell. (Doc. 65-1 at 60). 7 Defendant preserved 30 minutes of surveillance video footage after receiving 8 Plaintiff’s report. (Doc. 65-1 at 1 (received by the Clerk’s office on February 28, 2025)). 9 According to Derrick Osmond, a QuikTrip corporate representative and Rule 30(b)(6) 10 designee, it is Defendant’s general “practice” to “preserve 15 minutes [of video] before and 11 . . . after [an incident].” (Doc. 68-1 at 3). Depending on the store, video footage remains on 12 Defendant’s servers for 30 to 45 days. (Doc. 68-1 at 4). After that, the video records over 13 itself, or “overwrites itself.” (Doc. 68-1 at 5). Plaintiff watched the surveillance footage at 14 her deposition and conceded that the video does not show any liquids on the ground, but 15 perhaps shows a “dark spot.” (Doc. 65-1 at 47-48). Plaintiff was injured by the fall and she 16 incurred medical care and treatment expenses as a result.2 17 Steven Sparacia, a QuikTrip personnel manager and Rule 30(b)(6) designee, 18 described some of QuikTrip’s other relevant policies. Mr. Sparacia explained that 19 QuikTrip’s “normal practice” was for an employee to take a shift walk within the first 45 20 minutes of their shift. (Doc. 65-1 at 182-84). As pertinent here, an employee should have 21 taken a shift walk between 10:00 PM and 10:45 PM on December 5, 2019. (Doc. 65-1 at 22 182-84). Part of the shift walk includes looking for safety hazards around the gasoline bay 23 areas. (Doc. 65-1 at 185). Employees also sometimes utilize a “daily assignment 24 worksheet” (“DAW”) to indicate when they complete certain tasks. (Doc. 65-1 at 176). Per 25 the DAW here, an employee power-washed the gasoline bay area after the shift walk (after 26 10:45 PM) but prior to the end of the shift (before 7:00 AM). (Doc. 65-1 at 194, 196).
27 2 The following is a non-exhaustive list of interactions between Plaintiff and medical providers: Plaintiff went to urgent care, (Doc. 65-1 at 64-65, 69, 74-75, 239-253); the 28 emergency room, (Doc. 65-1 at 75, 255-264); a chiropractor, (Doc. 65-1 at 77-78); the Personal Injury Clinic (Doc. 65-1 at 79-80, 255); and a physical therapist (Doc. 65-1 at 84). 1 However, the checkbox next to “Shiftwalk Night” was left unchecked. (Doc. 65-1 at 177). 3 a. Summary Judgment 4 In a diversity case, a federal court applies state substantive law, but federal 5 procedural law. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The federal 6 summary judgment standard is procedural, therefore it controls in a diversity case in federal 7 court. Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994) (“In diversity 8 cases, procedural issues related to summary judgment are controlled by federal law.”). 9 Summary judgment is appropriate when “the movant shows that there is no genuine 10 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 11 Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must 12 support that assertion by . . . citing to particular parts of materials in the record, including 13 depositions, documents, electronically stored information, affidavits, or declarations, 14 stipulations . . . admissions, interrogatory answers, or other materials,” or by “showing that 15 materials cited do not establish the absence or presence of a genuine dispute, or that an 16 adverse party cannot produce admissible evidence to support the fact.” Id. at 56(c)(1)(A- 17 B). Thus, summary judgment is mandated “against a party who fails to make a showing 18 sufficient to establish the existence of an element essential to that party’s case, and on 19 which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 20 317, 322 (1986). 21 Initially, the movant bears the burden of demonstrating to the Court the basis for the 22 motion and the elements of the cause of action upon which the non-movant will be unable 23 to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non- 24 movant to establish the existence of material fact. Id. A material fact is any factual issue 25 that may affect the outcome of the case under the governing substantive law. Anderson v. 26 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply 27 show that there is some metaphysical doubt as to the material facts” by “com[ing] forward 28 with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. 1 Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)). A 2 dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return 3 a verdict for the non-moving party. Anderson, 477 U.S. at 248. The non-movant’s bare 4 assertions, standing alone, are insufficient to create a material issue of fact and defeat a 5 motion for summary judgment. Id. at 247-48. However, in the summary judgment context, 6 the Court construes all disputed facts in the light most favorable to the non-moving party. 7 Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). 8 At the summary judgment stage, the Court’s role is to determine whether there is a 9 genuine issue available for trial. There is no issue for trial unless there is sufficient evidence 10 in favor of the non-moving party for a jury to return a verdict for the non-moving party. 11 Anderson, 477 U.S. at 249-50. “If the evidence is merely colorable, or is not significantly 12 probative, summary judgment may be granted.” Id. (citations omitted). 13 b. Negligence and Premises Liability 14 Because this is a diversity case, the Court must apply Arizona substantive law. See 15 Beesley v. Union Pac. R.R. Co., 430 F. Supp. 2d 968, 970 (D. Ariz. 2006) (citing Erie R.R. 16 Co., 304 U.S. at 78-79). Generally, to establish a claim for negligence under Arizona law, 17 a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a 18 certain standard of care; (2) a breach by the defendant of that standard; (3) a causal 19 connection between the defendant’s conduct and the resulting injury; and (4) actual 20 damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). “To establish negligence in a 21 premises liability case under Arizona law, ‘the plaintiff must prove either, 1) that the 22 foreign substance or dangerous condition is the result of defendant’s acts or the acts of his 23 servants, or 2) that defendant had actual knowledge or notice of the existence of the foreign 24 substance or dangerous condition, or 3) that the condition existed for such a length of time 25 that in the exercise of ordinary care the proprietor should have known of it and taken action 26 to remedy it (i.e., constructive notice).’” Sheikh v. Costco Wholesale Corp., No. CV-22- 27 00947-PHX-DLR, 2024 WL 1175761, at *2 (D. Ariz. Mar. 19, 2024) (quoting Walker v. 28 Montgomery Ward & Co., Inc., 511 P.2d 699, 702 (Ariz. Ct. App. 1973)). Here, the Court 1 will focus its inquiry on the issue of breach, which hinges on notice.3 2 i. Mode-of-Operation Rule 3 In addition to the traditional actual and constructive notice requirements stated 4 above, Arizona courts allow slip-and-fall plaintiffs to prove notice using the “mode-of- 5 operation” rule. See Chiara v. Fry’s Food Stores of Arizona, Inc., 733 P.2d 283, 285 (Ariz. 6 1987). The mode-of-operation rule allows plaintiffs, in certain circumstances, to bypass 7 the traditional notice requirements by “look[ing] to a business’s choice of a particular mode 8 of operation and not events surrounding the plaintiff’s accident.” Id. The mode-of- 9 operation rule “relieves the plaintiff of the initial burden of proving notice in cases where 10 the occurrence of a transitory hazardous condition can reasonably be anticipated from the 11 store owner’s method of doing business.” Bloom v. Fry’s Food Stores, Inc., 636 P.2d 1229, 12 1231 (Ariz. Ct. App. 1981). “The mode-of-operation rule is of limited application because 13 nearly every business enterprise produces some risk of customer interference.” Chiara, 733 14 P.2d at 285-86. The mode-of-operation rule therefore only applies “when a business can 15 reasonably anticipate that hazardous conditions will regularly arise.” Id. at 286.4 16 ii. Reasonable Care 17 If a slip-and-fall plaintiff succeeds in proving notice—either by establishing 18 traditional actual or constructive notice, or via the mode-of-operation rule—the Court’s 19 inquiry moves to reasonable care under the circumstances. See id. Arizona law dictates that 20 in a slip-and-fall case, the plaintiff “bears the burden of persuading the jury that the 21 defendant acted unreasonably,” and “[t]he plaintiff must . . . come forward with evidence 22 supporting [her] case.” Id. 24 a. Actual or Constructive Notice 25 Defendant argues that Plaintiff “cannot[] establish that QuikTrip had constructive 26 3 The parties focus their arguments on the element of notice, or lack thereof. (See, e.g., 27 Doc. 65 at 5-12; Doc. 70 at 2-15, 18). 4 In the context of the mode-of-operation rule, Arizona courts define “regularly” as 28 “customary, usual, or normal.” Contreras v. Walgreens Drug Store, 149 P.3d 761, 763 (Ariz. Ct. App. 2006). 1 notice of the alleged spot on which she slipped” because “Plaintiff has not presented any 2 evidence of how long the condition existed before Plaintiff’s fall.”5 (Doc. 65 at 5-6). 3 Constructive notice is when “the condition existed for such a length of time that in the 4 exercise of ordinary care the proprietor should have known of it and taken action to remedy 5 it.” Walker, 511 P.2d at 702. “To prevail on [a] constructive notice theory at trial, Plaintiff 6 would have to establish two facts: 1) the amount of time the [liquid] was on the [ground]; 7 and 2) that amount of time was not reasonable given the circumstances.” Velasco v. Bodega 8 Latina Corp., No. CV-18-02340-PHX-ROS, 2019 WL 1787483, at *4 (D. Ariz. Apr. 24, 9 2019). 10 Here, at trial, Plaintiff would have the burden to show how long the liquid substance 11 had been on the ground. However, as Plaintiff explains in her Motion for Spoliation 12 Sanctions, Plaintiff faces an insurmountable burden in showing constructive notice because 13 Defendant preserved only 15 minutes of surveillance video footage prior to Plaintiff’s fall. 14 (Doc. 66 at 6). The Court thus addresses the spoliation argument first. 15 i. Spoliation Legal Standard6 16 “Spoliation is the destruction or material alteration of evidence, or the failure to 17 otherwise preserve evidence, for another’s use in litigation.” Fast v. GoDaddy.com LLC, 18 340 F.R.D. 326, 334 (D. Ariz. 2022) (quoting Surowiec v. Cap. Title Agency, Inc., 790 F. 19 Supp. 2d 997, 1005 (D. Ariz. 2011)). Previously, there were two independent sources of 20 power that authorized sanctions against “a party who has despoiled evidence: the inherent 21 power of federal courts to levy sanctions in response to abusive litigation practices,” and 22 Federal Rule of Civil Procedure 37. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 23 2006); Fed. R. Civ. P. 37(b), (e). However, after the 2015 amendments to Rule 37, Rule 37 24 now “provides the exclusive source of sanctions for the loss of [electronically stored 25 information (“ESI”)] and forecloses reliance on inherent authority.” Fast, 340 F.R.D. at
26 5 Plaintiff does not argue Defendant had actual notice. (Doc. 70 at 18). 6 Plaintiff’s Motion for Spoliation Sanctions relies on cases decided under state law. (See 27 Doc. 66 at 8-9). However, a federal court sitting in diversity applies federal law when addressing spoilation. See generally Mannion v. Ameri-Can Freight Sys. Inc., No. CV-17- 28 03262-PHX-DWL, 2020 WL 417492 (D. Ariz. Jan. 27, 2020); Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993). Thus, the Court will use the legal standard as stated here. 1 335 (emphasis added); see also Newberry v. County of San Bernardino, 750 Fed. App’x 2 534, 537 (9th Cir. 2018) (citing Fed. R. Civ. P. 37(e) advisory committee’s note to the 2015 3 amendment) (cleaned up); Steven S. Gensler & Lumen N. Mulligan, 1 Federal Rules of 4 Civil Procedure, Rules and Commentary, Rule 37 (2022). 5 Although Plaintiff asks this Court to rely on its inherent authority in deciding the 6 Motion for Spoliation Sanctions, (Doc. 66 at 11), as explained above, the Court lacks the 7 ability to do so. The evidence at issue—the video surveillance footage—is ESI and the 8 Court must use the standards articulated in Rule 37(e). Neither party briefed the spoliation 9 issue using Rule 37(e).7 Nonetheless, because Rule 37(e) is the standard, the Court 10 undertakes the analysis here. 11 ii. Rule 37(e) 12 Under Rule 37(e), if ESI that “should have been preserved in the anticipation or 13 conduct of litigation is lost because a party failed to take reasonable steps to preserve it, 14 and it cannot be restored or replaced through additional discovery,” a court:
15 (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or 16 (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: 17 (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was 18 unfavorable to the party; or (C) dismiss the action or enter a default judgment. 19 20 Fed. R. Civ. P. 37(e). “This rule establishes three prerequisites to sanctions: the ESI should 21 have been preserved in the anticipation or conduct of litigation, it is lost through a failure 22 to take reasonable steps to preserve it, and it cannot be restored or replaced through 23 additional discovery.” Fast, 340 F.R.D. at 335. 24 Here, it is undisputed that any additional video footage has been overwritten and 25 7 Because Rule 37(e) is the standard, the Court finds wholly unpersuasive either party’s 26 state law arguments. Similarly, although Defendant heavily relies on Rucker v. QuikTrip Corp., No. 1 CA-CV 21-0550, 2022 WL 2439767, at *3 (Ariz. Ct. App. July 5, 2022), and 27 there are some factual similarities between this case and Rucker, Rucker did not contemplate a spoliation instruction under federal law. Accordingly, the Court finds Rucker 28 inapposite on the issue of whether there was constructive notice because it considered the spoliation issue under state law. 1 cannot be replaced. (Doc. 68 at 2; Doc. 68-1 at 4-5). Thus, the question is whether 2 additional video should have been preserved and, if so, whether Defendant took reasonable 3 steps to do so. Defendant clearly recognized that it had a duty to preserve some amount of 4 evidence in the anticipation of litigation; otherwise, Defendant would not have preserved 5 any video. According to Mr. Osmond, QuikTrip’s Rule 30(b)(6) designee, “it is 6 [QuikTrip’s] practice that whenever [an] incident is reported that [QuikTrip] preserve[s] 7 15 minutes [of video] before and 15 minutes after for a total of 30 minutes.”8 (Doc. 68-1 8 at 3). However, Defendant concedes that “[i]t’s a case-by-case basis” and that the 9 “adjuster” has the ability to capture additional video, and sometimes does.9 (Doc. 68-1 at 10 8). 11 On the day of Plaintiff’s report, Defendant had the opportunity to preserve at least 12 24 hours of video prior to the incident. (Doc. 68 at 2; Doc. 68-1 at 6, 8). Defendant decided 13 to follow its policy, without adjustment, and preserve 15 minutes of video before and after 14 the incident, for a total of 30 minutes of video. (See generally Doc. 65-1 at 1 (received by 15 the Clerk’s office on February 28, 2025)). The issue is whether Defendant should have 16 exercised the discretion it concededly uses in other cases to preserve additional video 17 footage in the anticipation of litigation. For the following reasons, the Court finds 18 Defendant should have preserved additional video footage in this case. 19 Defendant hinges its rebuttal on the idea that because “the substance that Plaintiff 20 alleges she slipped on is not visible” in the video that “any additional video would not be 21 probative of . . . whether QuikTrip had notice.” (Doc. 68 at 3; see also Doc. 65 at 7 22 8 The Court notes that, if strictly followed, Defendant’s policy of preserving only 15 23 minutes of video prior to an incident would, in most cases, deprive plaintiffs of the opportunity to prove constructive notice in a state law negligence claim against Defendant. 24 However, the Court understands that in some scenarios, preserving less than 15 minutes may be sufficient. See, e.g., Libretti v. QuikTrip Corp., No. 1 CA-CV 23-0762, 2024 WL 25 4459044 (Ariz. Ct. App. Oct. 10, 2024) (video captured spill that occurred less than a minute before a fall). Although plaintiffs may attempt to bypass traditional notice 26 requirements via the mode-of-operation rule, in more recent years, courts have consistently declined to apply that rule, and Defendant itself argues it does not apply. See Frankel v. 27 Aramark Servs. Inc., No. CV-16-03101-PHX-JAT, 2018 WL 3429426, at *4 (D. Ariz. July 16, 2018) (collecting cases). The Court addresses the mode-of-operation rule below. 28 9 See, e.g., Rucker, 2022 WL 2439767, at *4 (QuikTrip preserved one hour of surveillance video). 1 (additional video footage would have been “insufficient to determine how long the alleged 2 spill existed before Plaintiff’s fall.”)). The Court is not persuaded by this argument. 3 First, it is undisputed that Plaintiff slipped on a liquid substance and fell, and 4 Plaintiff’s pictures clearly show there was some liquid on the ground. (Doc. 70-4 at 1-3). 5 Thus, it is irrelevant that the video itself does not show the liquid because there was clearly 6 liquid present. Furthermore, there are numerous occurrences that, if depicted in additional 7 video footage, would be highly probative of notice.10 The Court therefore finds that 8 Defendant’s argument that summary judgment is proper because Plaintiff did not show 9 notice squarely contradicts Defendant’s argument that it was under no obligation to 10 preserve more than 15 minutes of surveillance footage prior to the fall—the most direct 11 evidence of notice in this case. At the very least, Defendant could have preserved footage 12 starting from the shift change at 10:00 PM, which is when the new employee should have 13 performed a shift walk. This would have required preserving only an additional three hours 14 of video.11 15 The Court is also unpersuaded by Defendant’s argument that “it is very possible that 16 the substance on which Plaintiff slipped was water from [a] window washing squeegee” 17 from another patron 11 minutes before Plaintiff’s fall. (Doc. 68 at 8-9). Plaintiff testified 18 multiple times that she believes she slipped on oil. (Doc. 70 at 8). Thus, any argument 19 regarding whether the liquid was oil or water suggests a dispute of material fact and directly 20 undermines Defendant’s own Motion for Summary Judgment, which asserts there are no 21 material fact disputes. 22 Finally, Defendant cites McGuire v. Valley Nat. Bank of Phoenix, 381 P.2d 588 23 10 Plaintiff suggests that additional video footage might have shown (1) “that no one 24 inspected the area;” (2) “that [Defendant] let the dangerous condition exist for hours;” and (3) “that [Defendant] did not clean the area.” (Doc. 69 at 3). The Court adds that additional 25 video footage also might have shown the employee performing the shift walk, an employee otherwise examining the area at issue, an employee cleaning the area at issue, an employee 26 power washing the area at issue, the spill occurring, the spot illuminated in different lighting, or another patron walking around the area at issue. Even if the video footage 27 showed QuikTrip did not have constructive notice, it is still highly relevant to the case. 11 Defendant cites server space as a reason for not preserving 24 hours of footage. (Doc. 28 68-1 at 7). However, Defendant’s servers are already storing 30-45 days of footage. The Court fails to see why an additional three hours of video represents a burden to Defendant. 1 (Ariz. 1963) for the premise that a jury cannot be left to speculate as to the timing of a 2 hazardous condition. (Doc. 65 at 7). The Court also finds this contradictory. Even though 3 the spot is not visible in the video, the Court has already explained how additional footage 4 would decrease the amount of speculation regarding notice in this case. This is especially 5 true considering that no employee indicated that they performed the shift walk on the DAW 6 and the only evidence of whether the shift walk was performed would therefore be the 7 video footage. (See Doc. 65-1 at 177). 8 The Court finds by a preponderance of the evidence that the basic prerequisites to 9 sanctions under Rule 37(e) are satisfied. Defendant had a duty to preserve more than 30 10 minutes of surveillance video footage, Defendant did not take reasonable steps to do so, 11 and the footage cannot be restored or replaced through additional discovery. See Fed. R. 12 Civ. P. 37(e). “With the prerequisites satisfied, the Court must now determine whether the 13 additional requirements for sanctions under Rule 37(e)(1) and (e)(2) are satisfied.” Fast, 14 340 F.R.D. at 339. 15 iii. Rule 37(e)(1) and (e)(2) 16 Plaintiff seeks the specific sanction of an adverse inference jury instruction against 17 Defendant. (Doc. 66 at 1). An adverse inference jury instruction is only available under 18 Rule 37(e)(2), so the Court will analyze Plaintiff’s Motion under that section. 19 To give an adverse inference jury instruction, the Court must first find that 20 Defendant “acted with the intent to deprive” Plaintiff of the use of the video surveillance 21 footage in litigation. Fed. R. Civ. P. 37(e)(2). “Although direct evidence of such intent is 22 always preferred, a court can find such intent from circumstantial evidence.” Fast, 340 23 F.R.D. at 339. The Court may make this finding “when ruling on a pretrial motion, when 24 presiding at a bench trial, or when deciding whether to give an adverse inference instruction 25 at trial.” Fed. R. Civ. P. 37(e) advisory committee’s note to the 2015 amendment. 26 The Court may also “conclude that the intent finding should be made by a jury.” Id.; 27 see also Hoffer v. Tellone, 128 F.4th 433, 440-41 (2d Cir. 2025). If the Court concludes as 28 such, 1 the court’s instruction should make clear that the jury may infer from the loss of the information that it was unfavorable to the party that lost it only if the jury first finds 2 that the party acted with the intent to deprive another party of the information’s use in the litigation. If the jury does not make this finding, it may not infer from the loss 3 that the information was unfavorable to the party that lost it. 4 Id. 5 Here, the Court concludes that the intent finding should be made by a jury. If the 6 jury concludes that Defendant acted with the intent to deprive Plaintiff of the use of the 7 video surveillance footage in litigation, the jury will be allowed to consider an adverse 8 inference instruction from which the jury may infer that the additional video footage was 9 unfavorable to Defendant. This is enough to create a disputed issue of fact on the issue of 10 constructive notice. See Jones v. Riot Hosp. Grp. LLC, 95 F.4th 730, 735 (9th Cir. 2024) 11 (noting that “[r]elevant considerations include the timing of destruction, affirmative steps 12 taken to delete evidence, and selective preservation.”). 13 b. Mode-of-Operation Rule 14 Alternatively, Plaintiff argues that if the Court denies her request for an adverse 15 inference and concludes Plaintiff has not created an issue of fact on constructive notice, 16 Plaintiff could still create a jury question via the mode-of-operation rule, which allows 17 Plaintiff to “bypass” traditional notice requirements. However, because the Court has 18 concluded the jury may consider an adverse inference instruction, and that such an 19 instruction is sufficient to create a question of fact, the Court need not decide this issue to 20 deny summary judgment. Nonetheless, the Court must decide before trial whether a jury 21 instruction on the mode-of-operation rule as an alternative means of establishing notice 22 will be given. Therefore, the Court will determine whether Defendant is entitled to partial 23 summary judgment on the issue of whether the rule applies. 24 Defendant argues that the mode-of-operation rule does not apply because “it is 25 unknown if the substance was actually oil . . . [and] any evidence regarding the regularity 26 of oil spills may not even be relevant,” and, alternatively, because “Plaintiff has not 27 established that oil spills ‘regularly occur’ in the gas bays, nor has she established that 28 [Defendant] failed to exercise reasonable care.” (Doc. 65 at 9-10). 1 Recently, an Arizona state court declined to apply the mode-of-operation rule to a 2 QuikTrip, despite evidence “showing that QuikTrip knew customer vehicles sometimes 3 leak in parking spaces and that, given the large number of customers who visit the store 4 each day, leaks can frequently occur.” Rucker, 2022 WL 2439767, at *3. The court found 5 that “the frequency of oil leaks, standing alone, does not trigger the mode-of-operation 6 rule.” Id. (citing Contreras v. Walgreens Drug Store No. 3837, 149 P.3d 761 (Ariz. Ct. 7 App. 2006)). The court also noted that the plaintiff had not offered evidence “to show 8 QuikTrip failed to take steps to mitigate any such risk,” such as evidence that “QuikTrip 9 deviated from its typical procedures for handling oil spills—or that those procedures were 10 deficient or deviated from a more rigorous industry standard of care followed by other gas 11 station operators.” Id. 12 Here, too, there is evidence that QuikTrip knew that oil leaks occur; in fact, Plaintiff 13 cites to a Rule 30(b)(6) deposition from Rucker for this premise.12 (Doc. 70 at 9-10). 14 Plaintiff also cites to a Rule 30(b)(6) deposition from this case, in which Mr. Sparacia 15 testified that QuikTrip employees retain some level of discretion in determining whether 16 to clean up an oil spot. (Doc. 65-1 at 149-50, 165). However, like the plaintiff in Rucker, 17 Plaintiff has not offered additional evidence that suggests that any employee in this case 18 deviated from typical procedures,13 or that QuikTrip’s cleaning procedures, including the 19 level of employee discretion, are deficient or otherwise deviate from procedures followed 20 at other gas stations. In conclusion, the mode-of-operation rule does not apply and 21 Defendant is entitled to partial summary judgment on this issue. 22 c. Medical Causation and Damages 23 Defendant also argues that summary judgment is warranted because Plaintiff “failed 24 12 Defendant does not object to this testimony being used in this case. 25 13 Mr. Sparacia, Defendant’s Rule 30(b)(6) designee, testified that the boxes for tasks on the DAW, including shift walk, were left unchecked. (Doc. 70-2 at 83). However, Mr. 26 Sparacia says that the unchecked boxes do not “suggest that the shift walk was not done,” but rather “suggest[] that somebody did not checkmark it off.” (Doc. 70-2 at 83). As 27 discussed above, the best evidence of whether the shift walk was performed is the video surveillance footage, which Defendant destroyed. Because the Court has concluded that 28 the jury may consider an adverse inference instruction based on the destroyed video footage, the Court need not address it here. 1 to prove medical causation and damages.” (Doc. 65 at 12). Specifically, Defendant argues 2 Plaintiff failed to comply with the expert witness requirements in Federal Rule of Civil 3 Procedure 26 in disclosing evidence of Plaintiff’s medical treatments. (Doc. 65 at 12-18). 4 Defendant effectively seeks to preclude all evidence from Plaintiff’s treating physicians. 5 (Doc. 65 at 17-18). However, because Plaintiff survives summary judgment without this 6 evidence, the Court need not decide the disclosure issue to decide summary judgment. 7 A non-expert, or “lay,” witness may testify “in the form of an opinion” if it is: “(a) 8 rationally based on the witness’s perception; (b) helpful to clearly understanding the 9 witness’s testimony or to determining a fact in issue; and (c) not based on scientific, 10 technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. 11 Thus, while a lay witness may “testify about symptoms and injuries that are within the 12 realm of the average lay person’s experience, technical questions of medical causation 13 should be reserved for expert testimony.” Mendoza v. Shinn, No. CV-21-00645-PHX-SPL, 14 2024 WL 4452753, at *3 (D. Ariz. Oct. 9, 2024); see also Johnson v. Costco Wholesale 15 Corp., No. CV-17-02710-PHX-SMB, 2021 WL 461937, at *3 (D. Ariz. Feb. 9, 2021) 16 (allowing plaintiff to testify that shattered bottle caused cut to eye but not that it caused a 17 traumatic brain injury, migraines, a stroke, or nerve damage). 18 Here, Plaintiff may generally testify as to what an average person would have 19 observed after she fell. For example, Plaintiff may testify—and already has in her 20 deposition—to the following: (1) that “when [she] got up from falling on the concrete . . . 21 [she] started feeling pain on [her] left side;” (2) that “when [she] got up, [she] had blurry 22 vision;” (3) that she “remember[s] waking up on the ground” and believes she lost 23 consciousness for “two to three minutes;” and, (4) that she had “pain in [her] left leg.” 24 (Doc. 70-3 at 37, 51-53, 56). The Court finds this to be enough to survive summary 25 judgment on damages. However, this Order is without prejudice to Defendant moving in 26 limine to preclude evidence from each provider separately.14
27 14 If Defendant chooses to file any motions in limine, Defendant should prepare one motion per provider. Each motion should discuss what was disclosed, how, when, and whether a 28 written report was required. If Defendant argues that a written report was required and that Plaintiff failed to include a report, Defendant should also discuss whether Plaintiff’s failure 2 For the reasons set forth above, 3 IT IS ORDERED that Defendant’s Motion for Summary Judgment, (Doc. 65), is 4|| GRANTED in part and DENIED in part as specified above. 5 IT IS FURTHER ORDERED that Plaintiff's Motion for Spoliation Sanctions 6|| (Doc. 66) is GRANTED to the extent specified above. 7 IT IS FURTHER ORDERED that fictitious defendants John Does and Jane Does 8 || I-X, ABC Corporations I-X, and XYZ Partnerships I-X are dismissed without prejudice. 9 IT IS FINALLY ORDERED that an Order setting trial will follow. 10 Dated this 25th day of March, 2025. 11 12 a 3 13 James A. Teilborg 14 Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 to do so was “substantially justified or [] harmless” under Federal Rule of Civil Procedure 37(c)(1). See Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185, 1191 (9th Cir. 2022). -|4-