United States District Court, D. Nevada
D. GEORGE, UNITED STATES DISTRICT JUDGE.
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.
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.
Having read and considered the pleadings, papers, and
admissible evidence, the Court will grant summary judgment in
favor of Advantage Sales.
for Summary Judgment
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.
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
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
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)).
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."
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. 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
record lacks any evidence that the piece of banana on which
Brown slipped could be observed from the location of the
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, ¶10. In their
opposition, the Browns reiterate their theory of liability
against Advantage Sales: "With regard to slip and ...