Opinion
1 CA-CV 20-0680
02-03-2022
ARACELI PEREZ LOPEZ, Plaintiff/Appellant, v. BASHAS', INC., Defendant/Appellee.
The Brill Law Firm, PLLC, Scottsdale By Daniel S. Brill Counsel for Plaintiff/Appellant Burch & Cracchiolo, PA, Phoenix By Matthew J. Skelly, Ian Neale Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2019-010085 The Honorable Daniel J. Kiley, Judge
The Brill Law Firm, PLLC, Scottsdale
By Daniel S. Brill
Counsel for Plaintiff/Appellant
Burch & Cracchiolo, PA, Phoenix
By Matthew J. Skelly, Ian Neale
Counsel for Defendant/Appellee
Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge David D. Weinzweig and Judge Paul J. McMurdie joined.
MEMORANDUM DECISION
SWANN, JUDGE
¶1 Araceli Perez Lopez appeals the superior court's grant of summary judgment in favor of Bashas', Inc. in this slip-and-fall case. Because Lopez failed to submit evidence to generate a dispute of material fact and the superior court correctly determined that the mode-of-operation rule does not apply to the facts of appellant's case, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On June 25, 2017, Lopez was shopping at Food City, a chain of grocery stores owned by Bashas'. While shopping in the self-service produce section, Lopez slipped on a foreign object and fell. A cashier called the store manager to the scene via intercom. The manager took photos of the produce section and the smashed grape Lopez asserts caused her fall. Lopez alleges that she sustained serious injuries from the fall.
¶3 Lopez sued Bashas' for negligence. Bashas' filed a motion for summary judgment arguing that Lopez failed to establish the notice element of her case. In her response, Lopez argued that the mode-of-operation rule supplants any notice requirements. Bashas' contended that Lopez waived her right to assert the mode-of-operation theory by making late Ariz. R. Civ. P. ("Rule") 26.1 disclosures. Despite the late disclosures, the superior court ruled on the merits and granted Bashas' motion for summary judgment. Lopez appeals.
DISCUSSION
¶4 Summary judgment is only appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Rule 56(a). We review summary judgment rulings de novo. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). And we view the evidence in the light most favorable to the non-moving party. Id.
I. LOPEZ FAILED TO ESTABLISH THAT BASHAS' HAD NOTICE OF THE DANGEROUS CONDITION CREATED BY THE FALLEN GRAPE.
¶5 Lopez asserts that Bashas' owed her a duty of care to "monitor, control, and attend to conditions in or upon Defendant Bashas' premises capable of causing hazard." Although Lopez is correct that "the proprietor of a business is under an affirmative duty to make the premises reasonably safe for use by invitees," the proprietor "is not an insurer of their safety and is not required to keep the premises absolutely safe." Preuss v. Sambo's of Ariz., Inc., 130 Ariz. 288, 289 (1981). Instead, the proprietor has a duty to exercise reasonable care. Walker v. Montgomery Ward & Co., 20 Ariz.App. 255, 258 (1973). As such, the plaintiff in a slip-and-fall negligence case is required to prove that the defendant had notice of the dangerous condition and failed to respond reasonably. Id.
¶6 A plaintiff can establish notice by proving (1) the defendant's actions or those of the defendant's agents created the dangerous condition, (2) the defendant had actual knowledge of the dangerous condition, or (3) the condition existed for such a length of time that "in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it." Id. Lopez admits she does not know how the grape fell on the floor or how long it was there. There is no evidence in the record indicating that any store employees were aware of the dangerous condition presented by the fallen grape. Without evidence that Bashas' had actual or constructive knowledge of the fallen grape, Lopez fails to prove notice.
II. THERE IS NO EVIDENCE IN THE RECORD TO JUSTIFY INVOKING THE MODE-OF-OPERATION RULE.
¶7 Lopez asserts that her inability to establish notice is "immaterial" because a jury could infer negligence from Bashas' mode of doing business. Because plaintiffs injured in slip-and-fall accidents are "rarely in a position to prove even constructive notice," Arizona courts recognize the mode-of-operation rule. Bloom v. Fry's Food Stores, Inc., 130 Ariz. 447, 449 (App. 1981). The mode-of-operation rule supplants the actual notice requirement "in cases where the occurrence of a transitory hazardous condition can reasonably be anticipated from the store owner's method of doing business." Id. In determining whether such a reasonable probability exists, we look to factors such as the general nature of the business, the general condition of the premises, and a pattern of conduct of recurring incidents. Id. at 450.
A. There Is No Evidence That the Nature or Condition of the Grocery Store Would Lead to Regular Spills.
¶8 Lopez argues that Bashas' should have known dangerous conditions could arise in the produce section, as "customers have unrestricted freedom to inspect and replace loose produce, including grapes, thus creating a dangerous condition for customers." But a self-service business model is not sufficient to trigger the application of the mode-of-operation rule. Chiara, 152 Ariz. 398, 400-01 (1987), abrogated on other grounds by Orme Sch. v. Reeves, 166 Ariz. 301 (1990). Plaintiffs must provide something more than the mere possibility of customer interference to survive summary judgment because "[i]f the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law." Id. Plaintiffs must provide something more than the mere possibility of customer interference to survive summary judgment. Id.
¶9 We have previously applied the mode-of-operation rule in a grocery-store-grape case. In Bloom, the plaintiff slipped on a grape in the produce section of a Fry's Food Store. 130 Ariz. at 448. We overturned the superior court's grant of summary judgment because Bloom demonstrated that Fry's could reasonably anticipate hazards like the fallen grape would regularly arise. Id. at 451-52.
¶10 The facts of Bloom differ from those here in a few critical ways. There, the plaintiff presented evidence that "[g]rapes were loosely packed, highly stacked and next to the edge of the counter where they could easily fall," which differed from industry norms. Id. at 449. Evidence established that the grapes were stacked at least two feet high with a lip of only a couple of inches surrounding the display. Id. at 448. At the time, most stores displayed their grapes in cartons. Id. at 449. Here, Lopez presents no evidence as to how the grapes were displayed. The photos Lopez claims show "precariously-placed produce" do not include the grape display, nor do they show any fallen produce. And in Bloom, the plaintiff testified that several fallen grapes were near the display, some of which were crushed. Id. at 448. Here, Lopez only identifies a single squashed grape on the floor of the store. Next, in Bloom, the Fry's store manager referred to the produce section as one of the "'more dangerous' aisles." Id. at 449. Here, no Bashas' employee has made a comparable statement. Unlike the Bloom case, there is no evidence in this record to infer that the store displayed grapes in a way that would lead to frequent spills.
B. There Is No Evidence in The Record That Hazardous Spills Occur in This Produce Section with Regularity.
¶11 The mode-of-operation rule focuses on whether spills pose a danger to customers with "sufficient regularity to be considered customary, usual, or normal." Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 140, ¶ 12 (App. 2006). In Contreras, the plaintiff slipped on an unidentified liquid inside a Walgreens store while making a delivery. Id. at 138, ¶ 2. The store manager testified that liquid spills happened about twice a week. Id. at 139, ¶ 9. The trial court granted summary judgment in favor of Walgreens. Id. at 137, ¶ 1. We affirmed, determining that evidence of periodic spills alone was insufficient evidence of negligence to overcome a defense summary judgment. Id. at 140, ¶ 12. To invoke the mode-of-operation rule, a plaintiff must prove that regular spills pose regular dangers to customers. Id.
¶12 Lopez had no evidence about the frequency of spills in this produce section. Instead, she presents photos that do not include the grape display, she offers testimony that there was a single smashed grape on the floor, and she mentions sweep logs that are not in the record. Rather than citing evidence that grapes - or any produce for that matter- regularly fall and create dangerous conditions at this store, Lopez relies on the "common knowledge that grapes fall." But the fact that produce could fall while being manipulated by a customer is not sufficient to invoke the mode-of-operation rule. Without mode-of-operation or notice, Lopez's negligence claim fails as a matter of law.
CONCLUSION
¶13 We affirm the superior court's grant of summary judgment.