United States District Court, D. Nevada
ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND
GRANTING MOTION TO SEAL [ECF NOS. 45, 53]
P. GORDON, UNITED STATES DISTRICT JUDGE.
Silvia Sandoval sues defendant Albertsons, LLC for negligence
and negligent hiring, training, supervision, and retention
related to her fall at an Albertsons store. Albertsons moves
for summary judgment, arguing that Sandoval's case is
based on her conjecture about what caused her to fall.
Albertsons also contends there is no evidence that it had
actual or constructive notice of the hazard and failed to
responds that she has consistently stated that she slipped on
water and some purple-colored organic matter that she
believed was either a grape or a flower petal. As for whether
Albertsons had constructive notice of the hazard, Sandoval
argues that this store has a long history of accidents, the
floor is below industry standards for slip resistance when
wet, and Albertsons' policy at the time was to sweep the
entire store only once per hour. Sandoval contends that
Albertsons was on constructive notice of the hazard because
the water was on the floor up to 40 minutes before she fell.
Alternatively, Sandoval argues Albertsons' practice of
allowing customers to serve themselves at the floral
department where she fell required Albertsons to put adequate
safety measures in place, such as mats, to ensure
patrons' safety. Finally, Sandoval argues the jury should
be allowed to consider the fact that Albertsons lost a copy
of the video of the incident.
Albertsons' motion. A reasonable jury could find Sandoval
slipped on water or a substance on the floor. Whether
Albertsons failed to use reasonable care is a question for
the jury to resolve.
judgment is appropriate if the movant shows “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), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at trial.”). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
Nevada law, “a business owes its patrons a duty to keep
the premises in a reasonably safe condition for use.”
Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322
(Nev. 1993). This includes a duty “to inspect the
premises to discover dangerous conditions not known to [it]
and to take reasonable precautions to protect the invitee
from dangers which are foreseeable from the arrangement or
use.” Twardowski v. Westward Ho Motels, Inc.,
476 P.2d 946, 947-48 (Nev. 1970) (quotation omitted).
“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.” Sprague,
849 P.2d at 322. But where “the foreign substance is
the result of the actions of persons other than the business
or its employees, liability will lie only if the business had
actual or constructive notice of the condition and failed to
remedy it.” Id. at 322-23. Whether the
business had constructive notice of the hazardous condition
is “a question of fact properly left for the
jury.” Id. at 323.
the evidence in the light most favorable to Sandoval, a
reasonable jury could find she slipped on water or some
“organic matter, ” such as a flower petal or a
grape. Sandoval testified she saw water on the floor and on
the heel of her shoe. ECF No. 45-2 at 7. She also saw
something purple, possibly a grape or flower petal, smeared
on the floor where she fell. Id. at 5, 7. Sandoval
and her daughter, who was with her at the time, saw a
Starbucks employee clean up the area after she fell. ECF Nos.
45-2 at 8; 45-3 at 5.
area where Sandoval fell was located near the floral
department, which had a display stand of several buckets
filled with water from which patrons could retrieve flowers.
ECF Nos. 45-1 at 3-4; 45-2 at 5-6, 10; 46-11 at 5. A produce
display was nearby. ECF Nos. 45-4; 52-1 at 5-6; 52-3 at 5. It
is unclear whether there were any skid mats around the floral
or produce displays in this area. ECF No. 46-11 at 5.
Sandoval fell between 4:00 and 4:30 p.m. ECF No. 45-4. The
last sweep of that area occurred 10 to 40 minutes prior. ECF
No. 45-5. Given these circumstances, and viewing the facts in
the light most favorable to Sandoval, material issues of fact
remain as to whether Albertsons failed to use reasonable care
by not placing mats near the flower display where water might
spill as patrons carry flowers away or by not increasing the
frequency of floor inspections and sweeps in this area that
had potential water and produce hazards. ECF Nos. 46-8 at 4
(the plaintiffs expert opining Albertsons should have known
the floral display would create a water hazard); 52-1 at 5-6
(Albertsons' Rule 30(b)(6) witness testifying that the
produce department gets swept every 30 minutes but that the
area where Sandoval fell would be considered the sales floor
and get swept every hour); see also Rios v. Walmart
Inc., 740 Fed.Appx. 582, 583 (9th Cir. 2018) (holding
that a hazard on the floor for even a short time may give
rise to negligence if a reasonable inspection was not
conducted). I therefore deny Albertsons' motion.
THEREFORE ORDERED that defendant Albertsons, LLC's motion