United States District Court, D. Nevada
J. DAWSON, UNITED STATES DISTRICT JUDGE.
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
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.
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.
Summary Judgment Standard
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).
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.
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.
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).
on the legal duties of businesses to protect customers from
slips and falls, the Nevada Supreme Court stated the
[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