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Mills v. Wal-Mart Stores, Inc.

United States District Court, D. Nevada

September 13, 2017

HEATHER MILLS, Plaintiff,
v.
WAL-MART STORES, INC, Defendant.

          ORDER

          KENT J. DAWSON, UNITED STATES DISTRICT JUDGE.

         Presently before the Court is Defendant Wal-Mart Stores, Inc.'s Motion for Summary Judgment (#30). Plaintiff Heather Mills filed a response in opposition (#32) to which Defendant replied (#35).

         I. Facts

         Defendant Wal-Mart Stores, Inc. (“Wal-Mart”) is the owner of a Wal-Mart store located in Las Vegas, Nevada. One of Wal-Mart's high traffic entrances formed an aisle with merchandise on either side. One side contained flowers in water, with an absorbent mat on the floor. The display also had bags for holding flowers. On August 14, 2009, Plaintiff Heather Mills was walking past this area when she allegedly slipped and fell in a puddle of water covering ninety percent (90%) of the aisle. Plaintiff's Exhibit 8; see also Plaintiff's Exhibit 10. As a result of her fall Mills sustained injuries.

         Surveillance video and employee testimony establishes that a Wal-Mart employee passed the area 23 minutes prior to the fall with a dust mop, and that five minutes before the fall a different Wal-Mart employee passed the area while leaving the store after the conclusion of his shift. Both employees assert there was no water on the floor at the times they passed by the area. Plaintiff has not identified any other Wal-Mart employees aware of the conditions on the floor at, or immediately preceding, the time of Mills' fall. Mills asserts that her fall and the resulting injuries were caused by the negligence of Wal-Mart. Mills filed her complaint against Wal-Mart. Defendant now moves for summary judgment, asserting that there are not genuine issues of material fact and that based on the available facts, even in the light most favorable to Mills, Plaintiff cannot meet her burden.

         II. Summary Judgment Standard

         Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         All justifiable inferences must be viewed in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the mere allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit or other evidentiary materials as provided by Rule 56(e), showing there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual issues of controversy in favor of the nonmoving party where the facts specifically averred by that party contradict facts specifically averred by the movant. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345 (9th Cir. 1995) (stating that conclusory or speculative testimony is insufficient to raise a genuine issue of fact to defeat summary judgment). Evidence must be concrete and cannot rely on “mere speculation, conjecture, or fantasy.” O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986). “[U]ncorroborated and self-serving testimony, ” without more, will not create a “genuine issue” of material fact precluding summary judgment. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

         Summary judgment shall be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.

         III. Analysis

         In Nevada, “to prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages.” Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009). The defendant's duty is “a question of law to be determined solely by the courts.” Turner v. Mandalay Sports Entertainment, LLC, 180 P.3d 1172, 1177 (Nev. 2008). Breach and proximate cause are generally questions of fact for the jury. Foster v. Costco Wholesale Corp., 291 P.3d 150, 153 (Nev. 2012); Lee v. GNLV Corp., 22 P.3d 209, 212 (Nev. 2001).

         Expounding on the legal duties of businesses to protect customers from slips and falls, the Nevada Supreme Court stated the following:

[A] business owes its patrons a duty to keep the premises in a reasonably safe condition for use. Where a foreign substance on the floor causes a patron to slip and fall, and the business owner or one of its agents caused the substance to be on the floor, liability will lie, as a foreign substance on the floor is usually not consistent with the standard of ordinary care. Where the foreign substance is the result of the actions of persons other than the business or its ...

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