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Brown v. Sam's West Inc.

United States District Court, D. Nevada

March 12, 2018

KEVIN BROWN, et al., Plaintiffs,
SAM'S WEST, INC., et al., Defendants.



         On May 15, 2015, plaintiff Kevin Brown slipped and fell while in a store owned by defendant Sam's West, Inc. He brought the instant suit against Sam's West alleging a claim for negligence. Brown subsequently amended his complaint to add Advantage Sales and Marketing, LLC as a defendant. On the date of his fall, Advantage Sales was operating a demonstration cart, about 25 feet from the place where Brown fell, handing out food samples. Brown then amended his complaint to add his wife as a plaintiff, alleging a claim for loss of consortium.

         Advantage Sales moves for summary judgment (ECF No. 51), arguing that it did not owe a duty of care to Brown, as it did not occupy that portion of Sam's West's store where the incident occurred. The Browns oppose the motion (ECF No. 66).[1] Having read and considered the pleadings, papers, and admissible evidence, the Court will grant summary judgment in favor of Advantage Sales.[2]

         Motion for Summary Judgment

         In considering a motion for summary judgment, the court performs "the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012). To succeed on a motion for summary judgment, the moving party must show (1) the lack of a genuine issue of any material fact, and (2) that the court may grant judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Arango, 670 F.3d at 992.

         A material fact is one required to prove a basic element of a claim. Anderson, 477 U.S. at 248. The failure to show a fact essential to one element, however, "necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Additionally, "[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient." United States v. $133, 420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477 U.S. at 252).

         "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. "Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." id., at 323. As such, when the non-moving party bears the initial burden of proving, at trial, the claim or defense that the motion for summary judgment places in issue, the moving party can meet its initial burden on summary judgment "by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id., at 325. Conversely, when the burden of proof at trial rests on the party moving for summary judgment, then in moving for summary judgment the party must establish each element of its case.

         Once the moving party meets its initial burden on summary judgment, the non-moving party must submit facts showing a genuine issue of material fact. Fed. R. Civ. Pro. 56(e); Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). As summary judgment allows a court "to isolate and dispose of factually unsupported claims or defenses, " Celotex, 477 U.S. at 323-24, the court construes the evidence before it "in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). The allegations or denials of a pleading, however, will not defeat a well-founded motion. Fed. R. Civ. Pro. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). That is, the opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).


         For purposes of this motion only, the Court construes the evidence as establishing the following factual background. Prior to May 15, 2015, Sam's West and Advantage Sales entered into a contract pursuant to which employees of Advantage Sales would operate demonstration carts handing out food samples on the sales floor of Sam's West's store. Stated generally, an employee of Advantage Sales would prepare a demonstration cart in the back of Sam's West's store, then move the cart to a designated location on the sales floor where the employee would provide food samples to Sam's West's patrons. Whenever an Advantage Sales' employee took a break, the employee would remove the cart from the sales floor and take it into the back of the store. Pursuant to the agreement, Advantage Sales was required to have its employees "maintain the immediate areas surrounding the Promotional Event [that is, the designated location of the demonstration cart] in a radius no greater than 10 feet around the Promotional Event, in a neat and clean condition."

         On May 15, 2015, an Advantage Sales' employee was handing out samples of waffles and fruit from the demonstration cart at the end of an aisle. Brown entered the aisle at the end opposite of the demonstration cart's location. As he walked toward the location of the demonstration he slipped on what appeared to be, and the Court assumes was, a piece of banana and fell.[3] Brown's wife indicated that he was between two bins located in the middle of the aisle, When he fell, he was walking toward the demonstration cart, which was about 25 to 30 feet in front of him and to the right.[4]

         The record lacks any evidence that the piece of banana on which Brown slipped could be observed from the location of the demonstration cart.[5]


         Generally, to maintain a negligence claim in Nevada, 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. See Scialabba v. Brandise Construction Co.,112 Nev. 965, 921 P.2d 928 (1996). In his complaint, Brown alleges that the "[defendants had a duty to maintain said premises in a reasonably safe and suitable condition for its patrons, guests, invitees and others; and further to take any and all reasonable precautions to avoid the presence of dangerous and/or artificial conditions on or around said premises." Second Amended Complaint, ΒΆ10. In their opposition, the Browns reiterate their theory of liability against Advantage Sales: "With regard to slip and ...

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