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Lologo v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

April 27, 2015



GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is the Motion for Summary Judgment (ECF No. 63) filed by Defendant Advantage Sales & Marketing LLC ("ASM"). Plaintiffs Robbin L. Lologo and Vincent J. Lologo ("Plaintiffs") filed a Response (ECF No. 64), as did Cross-Claimant Wal-Mart Stores, Inc. ("Wal-Mart"), (ECF No. 65). ASM filed a Reply to Plaintiffs' Response (ECF No. 66) and a Reply to Wal-Mart's Response (ECF No. 67). For the reasons discussed below, ASM's Motion is GRANTED in part and DENIED in part.


This case arises out of a slip and fall that occurred at Wal-Mart Store #1834, a Wal-Mart Supercenter Store in Grants Pass, Oregon (the "Wal-Mart Store"). (Am. Compl. ¶ 9, ECF No. 57). On August 7, 2011, Plaintiffs were shopping in the Wal-Mart Store and, while approaching a checkout line, Ms. Lologo allegedly slipped and fell on a brownish-yellow substance that was on the floor. ( Id. ); (Pls.' Resp. 4:4-5). A witness later identified the substance as applesauce. (Pls.' Resp. 4:4-5); (Depo. of Kira Sidivy p. 33, ECF No. 65-4).

ASM and Wal-Mart had an "In Store Promotions Agreement" ("the Agreement") in effect on the date of the incident. The Agreement included, among other things, an indemnification clause requiring that ASM indemnify Wal-Mart:

against any, and all, Claim(s) arising out of or relating to any of the following circumstance which arise under this Agreement: (i) breach of any of its obligations, representations, warranties, or covenants made under this Agreement; (ii) negligent acts or omissions by ASM or its personnel, employees, agents, or representatives in the course of performing under this Agreement.

(MSJ 5:14-24, ECF No. 63); (Agreement § 17(c), ECF No. 63-11). ASM also had an obligation under the Agreement to "maintain the areas surrounding the Promotional Event in a neat and clean condition." (Agreement § 2(j)). Although the parties dispute the precise location where ASM's promotional event took place, the parties agree that ASM distributed applesauce in the Wal-Mart Store on August 7th. (MSJ 11:4-6).

Plaintiffs filed the instant action in state court on July 12, 2013. (Ex. B to Pet. for Removal, ECF No. 1). Wal-Mart removed the case to this Court on August 20, 2013. (ECF No. 1). Plaintiffs amended their Complaint to add ASM as a Defendant on July 22, 2014. (ECF No. 57). On August 1, 2014, Wal-Mart filed a Cross-Complaint containing four claims against ASM. (ECF No. 59). In the instant Motion, ASM requests that the Court enter summary judgment as to all claims against it. (ECF No. 63).


The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely ...

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