United States District Court, D. Nevada
before the court is defendants Sam's West, Inc. and
Wal-Mart Stores, Inc.'s (“Wal-Mart”) motion
for summary judgment. (ECF No. 32). Plaintiff filed a
response (ECF No. 35), and defendants filed a reply (ECF No.
6, 2015, plaintiff filed the present case in Nevada state
court, alleging claims against defendants for negligence and
premises liability in relation to a slip-and-fall occurring
in a Sam's Club store due to a clear puddle located at a
checkout counter. (ECF No. 1-1). On October 19, 2015,
Wal-Mart Stores, Inc. filed a petition for removal to this
court. (ECF No. 1). On August 4, 2016, defendants
filed the present motion. (ECF No. 32).
their motion for summary judgment, defendants argue that
plaintiff cannot succeed on her claim for negligence based on
premises liability because she cannot show breach of duty for
a lack of actual or constructive notice of any hazardous
condition. (Id.). Particularly, defendants assert
that there is no evidence that defendants' employees
created the harmful condition or that the condition had been
present for an unreasonable amount of time. (Id.).
defendants argue that the store manager who interacted with
plaintiff after the incident had no foundation for making any
probative statement about the presence of the clear liquid.
(Id.). That manager believed that the substance
forming the puddle was from a rotisserie chicken container;
the records for that checkout register indicated that the
prior customer at that register had indeed purchased a
rotisserie chicken. See (ECF Nos. 32, 32-1, 32-4).
Defendants additionally suggest that there is no evidence on
the record that any employee knew about the puddle before the
incident and that seven minutes is an insufficient duration
of time to impose constructive notice. (ECF No. 32).
responded, contesting that the length of time the puddle had
been on the floor and its origin were questions proper for
jury determination; a failure to inspect the ground in front
of a checkout counter for seven minutes was unreasonable; and
Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322
(1993), controls because constructive notice is a question
for the jury and the checkout area was one of
“continuous risk.” (ECF No. 35 at 9-11).
replied, arguing that Sprague is factually
distinguishable from the instant case and that
plaintiff's assertions regarding the origin of the puddle
or its length of existence were mere speculation and not
sufficient to defeat a motion for summary judgment. (ECF No.
Federal Rules of Civil Procedure allow summary judgment 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). 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).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
non-moving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, the 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.” C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000).
Moreover, “[i]n 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.”
contrast, when the non-moving 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 non-moving party's case; or (2)
by demonstrating that the non-moving 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 non-moving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
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. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.