Opinion
1 CA-CV 11-0218
05-28-2013
MARIA BLANCAS, individually; DOMINGO BLANCAS, individually, Plaintiffs/Appellants, v. CARNICERIA PUERTO DEL TORRO #2, INC., an Arizona corporation, Defendant/Appellee
The Brill Law Firm, PLLC by Daniel S. Brill Attorneys for Plaintiffs/Appellants Lewis Brisbois Bisgaard & Smith LLP by James K. Kloss and Kimberly A. Sierra Attorneys for Defendant/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Sup. Ct. 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court of Mohave County
Cause No. CV2007-4228
The Honorable Charles W. Gurtler, Jr., Judge
REVERSED AND REMANDED
The Brill Law Firm, PLLC
by Daniel S. Brill
Attorneys for Plaintiffs/Appellants
Scottsdale Lewis Brisbois Bisgaard & Smith LLP
by James K. Kloss
and Kimberly A. Sierra
Attorneys for Defendant/Appellee
Phoenix THOMPSON, Judge ¶1 Maria and Domingo Blancas (plaintiffs) assert that the trial court erred in entering judgment against them after summary judgment in this slip and fall case. We agree and reverse. ¶2 Plaintiffs filed a complaint alleging Maria slipped and fell during a visit to a small independent grocery store called the Carniceria Puerto Del Torro #2 in Bullhead City which resulted in medical bills and other damages., Defendant Carniceria filed a motion for summary judgment based on six facts or allegations, all of which were drawn straight from Maria's deposition:
Carniceria's initial disclosure statement indicates that it had three employees working at one time. One employee worked as cashier, one employee worked butchering and packaging meat and one employee worked the aisles. It indicates that the deli meat is cut and sealed in plastic bags which are "tied in a knot."
In her response to the motion for summary judgment, supported by an affidavit, plaintiff stated that the fall occurred approximately three to four feet from the deli counter where she was getting carnitas.
1. The date and location of the alleged injury;In its statement of facts in support of its motion for summary judgment, Carniceria did not address its own policies or its agents' actions as to inspecting, cleaning or maintaining the premises. Carniceria made no statements regarding the cleanliness of the deli area or any other possible source of the liquid. ¶3 Plaintiffs responded arguing Carniceria failed to show it met the standard of care, invoking the mode of operation rule and seeking additional time for discovery pursuant to Rule 56(f), Arizona Rule of Civil Procedure. Plaintiffs' counsel submitted an affidavit indicating his discovery plans. Carniceria replied. The trial court granted summary judgment in Carniceria's favor finding "There have been no facts that have been provided . . . to establish there has been some type of unique circumstance within the store that would give rise to the Mode of Operation Rule." ¶4 Plaintiffs filed a motion for reconsideration arguing that there was sufficient circumstantial evidence to withstand summary judgment and again invoking the mode of operation rule and Rule 56(f) seeking additional time for discovery. Carniceria filed a response. In denying the plaintiffs' motion for reconsideration, the trial court again found the mode of operation rule inapplicable, stating:
2. That she slipped on liquid on the floor near the deli counter when she went in to purchase food;
3. The liquid was clear, water-like, and smelled like bleach;
4. Maria did not know how long the liquid had been on the floor, how it had gotten there or where it had come from;
5. No one else saw her slip and fall; and
6. She is suing for damages.
[I]f a Plaintiff slipped on grapes that were left on the floor, it is probable that neither the injured party or the store would know necessarily how the grapes ended up on the floor. However, the Mode of Operation Rule would then be applicable. Here, there are just simply no facts or evidence to establish that the cleaning products utilized by Defendant caused the Plaintiff to fall; that Defendant's employees placed any type of liquid on the floor; or that Defendant's employees needed to clean the floor or that they had any knowledge of the existence of the liquid on the floor. Additionally, there is no evidence that Defendant's employees had used bleach in the cleaning process. Finally, it is simply unknown as to whether the liquid on the floor was caused by the Plaintiff. There is [sic] simply innumerable inferences for a jury to otherwise consider. What this matter boils down to is that there was liquid on the floor and the Plaintiff has not established or sufficiently built its case to discern the factual analysis or legal analysis to support a negligence theory.In denying additional discovery under Rule 56(f), the court found counsel's affidavit deficient and additional discovery inappropriate. Judgment was entered in favor of Carniceria. Plaintiffs filed a timely notice of appeal challenging both the grant of summary judgment for Carniceria and the denial of their motion for additional discovery under Rule 56(f). ¶5 We review de novo the grant or denial of a motion for summary judgment. Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 199, ¶ 15, 165 P.3d 173, 177 (App. 2007). We view the facts and the inferences drawn from those facts in the light most favorable to the party against whom judgment was entered. Id. (citation omitted). We review the decision on the record made in the trial court, considering only the evidence presented to the trial court when it addressed the motion. Phx. Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292, 877 P.2d 1345, 1348 (App. 1994); GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990). Summary judgment should be granted "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). ¶6 Rule 56(f) allows parties to request time to respond to a summary judgment motion in order to undertake necessary additional discovery. Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489, 493, 803 P.2d 900, 904 (App. 1990). We will not disturb the trial court's Rule 56(f) ruling absent an abuse of discretion. Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668, 676 (App. 1993) (citing Bobo v. John W. Lattimore, Contractor, 12 Ariz. App. 137, 141, 468 P.2d 404, 408 (1970)). To succeed under Rule 56(f), a party must present an affidavit informing the court of: (1) the particular evidence beyond his control; (2) the expected location of the evidence; (3) what the party believes the evidence will reveal; (4) the methods to be used to obtain it; and (5) an estimate of the amount of time the additional discovery will require. Id. ¶7 We begin with the premise that a store owner is not an insurer of the safety of his patrons. See Moore v. Sw. Sash & Door Co. , 71 Ariz. 418, 422, 228 P.2d 993, 995 (1951); Bloom v. Fry's Food Stores, Inc., 130 Ariz. 447, 449, 636 P.2d 1229, 1231 (App. 1981). Rather, the store owner's duty is to exercise reasonable care for safety of his invitees. Bloom, 130 Ariz. at 449, 636 P.2d at 1231 (citing McGuire v. Valley Nat'l Bank of Phx., 94 Ariz. 50, 381 P.2d 588 (1963) and Walker v. Montgomery Ward & Co., Inc., 20 Ariz. App. 255, 258, 511 P.2d 699, 702 (1973)). The store owner is obliged to protect "not only against dangers of which he knows, but also against those which with reasonable care he might discover." W. Page Keeton et al., Prosser & Keeton On Torts § 61, at 419 (5th ed. 1984). ¶8 In slip and fall cases, "the mere occurrence of a fall on the business premises is insufficient to prove negligence on the part of the proprietor." Preuss v. Sambo's of Ariz., Inc., 130 Ariz. 288, 289, 635 P.2d 1210, 1211 (1981). Typically, to be successful at trial, a slip and fall plaintiff must prove that the dangerous condition was a result of the defendant's acts or that the defendant had actual or constructive knowledge of the condition. See Chiara v. Fry's Food Stores of Ariz., Inc. , 152 Ariz. 398, 399-400, 733 P.2d 283, 284-85 (1987). Constructive notice can be presumed if "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. at 400, 733 P.2d at 285 (quoting Walker, 20 Ariz. App. at 258, 511 P.2d at 702 (internal quotation marks omitted) (upholding summary judgment for business where plaintiff could not show the peach she slipped on was either from Montgomery Ward, that Montgomery Ward had actual notice of the foreign substance or that the peach had been present sufficiently long that they should have notice of it)). ¶9 As pointed out by plaintiffs, Arizona has adopted the mode of operation rule because persons injured in self-service businesses will rarely be able to trace the origins of the accident. See id. That rule "looks to a business's choice of a particular mode of operation and not events surrounding the plaintiff's accident. Under the [mode of operation] rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise." Id. As this court stated in Bloom:
A patron sustaining injuries from a slip and fall is rarely in a position to prove actual or even constructive notice. Against this background, a body of case law has developed which relieves the plaintiff of the initial burden of proving notice in cases where the occurrence of a transitory hazardous condition can reasonably be anticipated from the store owner's method of doing business. One of the earliest of these cases was Bozza v. Vornado, Inc., 42 N.J. 355, 200 A.2d 777 (1964), which involved a fall in a store cafeteria. The Bozza court stated: As we view the over-all problem, notice is merely one factor for determining whether the defendant has breached his duty of due care. As stated in Bridgman v. Safeway Stores, Inc., 53 Cal.2d 443, 2 Cal.Rptr. 146, 148, 348 P.2d 696, 698 (Sup.Ct.1960): 'The requirement of actual or constructive knowledge is merely a means of applying the general rule * * * that the proprietor may be liable if he knew or by the exercise of reasonable care could have discovered the dangerous condition, and it does not alter the basic duty to use ordinary care under all the circumstances.' Thus, we believe that when plaintiff has shown that the circumstances were such as to create the reasonable probability that the dangerous condition would occur, he need not also prove actual or constructive notice of the specific condition. Factors bearing on the existence of such reasonable probability would include the nature of the business, the general condition of the premises, a pattern of conduct or recurring incidents, Mahoney v. J. C. Penney Co., 71 N.M. 244, 377 P.2d 663, (Sup.Ct.1962). To relieve the plaintiff of the requirement of proving actual or constructive notice in such instances is to effect a more equitable balance in regard to the burdens of proof.130 Ariz. at 449-50, 636 P.2d at 1231-32 (emphasis added) (internal quotation marks omitted). ¶10 In this slip and fall case, the trial court determined that there were no material facts preventing summary judgment. It found plaintiffs had not sufficiently established a case to support a negligence theory. It found the facts of the slip and fall did not present a "unique circumstance within the store" that would allow for application of the mode of operation rule. It further found that additional discovery was not necessary under Rule 56(f) before ruling on the motion for summary judgment. We conclude that on this record, the trial court did err in determining additional discovery was unnecessary. ¶11 Carniceria is exactly the type of self-service business that might be subject to the mode of operation rule. As explained in Bloom, as elsewhere, the mode of operation rule arose after the shift from the service-oriented businesses of the past to the prevailing modern self-service businesses of today. See, e.g., 130 Ariz. at 449-50, 636 P.2d at 1231-32. Gone are the days where a grocery store clerk individually selected your produce for you or checked your tire pressure at the gas station; that mode of operation has been replaced by modern self-service with fewer employees and lower overhead for the employer. ¶12 The self serve mode of operation, with its attendant far in our analysis today. lowered employee-presence, has brought some increased risk of danger that the employer must reasonably anticipate and guard against. See, e.g., Gump v. Walmart Stores, Inc., 5 P.3d 418, 432-33 (Haw. Ct. App. 1999) (addressing a slip and fall on a french fry in a Walmart which contained a McDonalds) (affirmed in pertinent part by Gump v. Walmart Stores, Inc., 5 P.3d 407 (Hawai'i 2000)). The Gump court stated:
While the self-service marketing method has economic advantages for the store owner or business proprietor and permits consumers the freedom to browse, examine, and select merchandise that they desire, certain problems are inherent in the method which are infrequently encountered under traditional merchandising methods that involve individual customer assistance.Id. (quoting Donald M. Zupanec, Annotation, Store or Business Premises Slip-and-Fall: Modern Status of Rules Requiring Showing of Notice of Proprietor of Transitory Condition Allegedly Causing Plaintiff's Fall, 85 A.L.R.3d 1000, 1004-05 n. 15 (1978)). Such situations, the case law illuminates, may include such instances as the falling of stacked fruit, spillage at a buffet, and the mixing of gas and water at a gas station. See Chiara, 152 Ariz. at 401, 733 P.2d at 286 (citing Bloom, 130 Ariz. 447, 636 P.2d 1229) (grapes); Rhodes v. El Rancho Markets, 9 Ariz. App. 576, 454 P.2d 1016 (1969) (lettuce); Tom v. S.S. Kresge Co. , Inc. , 130 Ariz. 30, 633 P.2d 439 (App. 1981) (soft drinks); Jasko v. F.W. Woolworth Co., 494 P.2d 839 (Colo. 1972) (pizza sold by the slice); Gonzales v. Winn-Dixie La., Inc., 326 So.2d 486 (La. 1976) (glass bottle of olive oil); Bozza v. Vornado, Inc., 200 A.2d 777 (N.J. 1964) (self-service cafeteria); Medlin v. Pilot Travel Centers, L.L.C., 292 P.3d 69 (Okla. Civ. App. 2012) (gas); Ciminski v. Finn Corp., 537 P.2d 850 (Wa. Ct. App. 1975) (self-service cafeteria). The mode of operation rule is premised on the idea that businesses should be held responsible for the risks created by their economic choice to have customers serve themselves. ¶13 Yet the mode of operation rule is not limited to precariously stacked oddly-shaped fruit nor to a form of specialized self-service within the store such as selling slices of pizza or buffets which may lead to slippage that leads to slip and falls. See Chiara, 152 Ariz. at 401, 733 P.2d at 286. As our supreme court said in adopting the mode of operation rule:
No element of the mode-of-operation rule . . . limits its application to produce or pizza. The trial court, court of appeals, and parties to this dispute have focused too closely on the actual transitory hazardous condition producing the injury—the spilled creme rinse. The similarity between the creme rinse at issue here and the produce at issue in other cases is largely irrelevant. The only real issue is whether or not Fry's could reasonably anticipate that creme rinse would be spilled on a regular basis.Id. Here, too, we caution against focusing too narrowly on the "actual transitory hazardous condition producing the injury," rather than whether this was a condition where discovery might show that Carniceria either actually knew or should have known about or could have reasonably anticipated what hazards would occur on a regular basis. ¶14 The question then turns to what constitutes sufficient notice that such an occurrence would occur in the store on a "regular basis" to survive summary judgment. Clearly, it does not require specific knowledge of a specific risk. Id. ; see Gump, 5 P.3d at 411. In Chiara, over the issue of crème rinse spilled in an aisle, all it took for plaintiff to get to the jury was a statement from a courtesy clerk, who did not remember a problem with the crème rinse, that: "There's lots of things I have to clean up in the store. It's not the cleanest place." 152 Ariz. at 401, 733 P.2d at 286. The Chiara court went on to say:
We think, therefore, that a jury should determine if Fry's reasonably could have anticipated that sealed bottles regularly were opened and spilled. Of course, that conclusion alone would not support a finding of liability. If Fry's exercised reasonable care under the circumstances, it will prevail at trial.Id. (emphasis added). On the current record there is no way no identify with what regularity spills occurred or how potential hazards were addressed by Carniceria. ¶15 Although ultimately plaintiffs will have to prove negligence to the jury, we note that the source of the hazard need not be from the Carniceria itself. Only further discovery will tell if that "clear, water-like" substance was from a third-party shopper, from a store employee doing an activity such as mopping, from an on-site problem such as condensation or a leak from the deli case, other on-site problem, or from plaintiff herself. See, e.g., Rhodes, 4 Ariz. App. at 185, 418 P.2d at 615 (adopting analysis of Wollerman v. Grand Union Stores, Inc., 221 A.2d 513 (N.J. 1966) (that in a self-service grocery a hazard could arise by the carelessness of the grocer, the plaintiff customer or another patron)); Viands v. Safeway Stores, 107 A.2d 118 (D.C. 1954) (customer tripped over wagon where children regularly congregated outside store doors); F.W. Woolworth Co. v. Stokes, 191 So.2d 411 (Miss. 1966) (rain water on floor); Mahoney v. J. C. Penney Co. , 377 P.2d 663 (N.M. 1962) (finding chewed gum on staircase which caused a slip and fall may be a "situation in which a defendant is aware that a third person may create a possibly dangerous condition"); Buttrey Food Stores Div. v. Coulson, 620 P.2d 549 (Wyo. 1980) (water tracked in from storm caused a slip and fall). It is clear that plaintiffs wish to discover evidence pertinent to the mode of operation rule and they should have that opportunity. We find, after reviewing the record and counsel's affidavit, that the trial court abused its discretion in denying plaintiffs' Rule 56(f) motion for additional time for discovery. Lewis, 178 Ariz. at 338, 873 P.2d at 676. ¶16 For the above stated reasons, the judgment of the trial court is reversed and this matter is remanded for proceedings consistent with this decision.
We note plaintiffs' statement in their motion for reconsideration that while Maria's deposition had been taken, the motion for summary judgment occurred before significant discovery against Carniceria had taken place. Specifically, that the depositions of the relevant Carniceria employees had been scheduled but not yet taken and that Carniceria had objected to every propounded interrogatory and request for production, and that Carniceria itself had not yet disclosed any exhibits, statements, photos or documents.
Some states have explicitly shifted the burden to defendant store owners to exculpate itself from a presumption of negligence when a slip and fall occurs in a store. See, e.g., Kavlich v. Kramer, 315 So.2d 282, 285 (La. 1975) (plaintiff slipped on piece of banana in a supermarket). We need not go so
We are cognizant that Division Two in Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 149 P.3d 761 (App. 2006) declined to apply the mode of operation rule to reverse summary judgment against a plaintiff who slipped and fell while at a Walgreens. We find both Contreras and Borota v. University Medical Center, 176 Ariz. 394, 861 P.2d 679 (App. 1993), upon which Division Two relied in Contreras, factually and legally distinguishable from the instant case.
In Contreras,rather than relying solely on plaintiff's testimony, Walgreens produced evidence in support of their motion for summary judgment that spills occurred perhaps twice a week in a larger than average store which operated twenty-hours a day and those spills needed to be cleaned up "from time to time." Id.at 138, ¶ 4, 861 P.3d at 762. Division Two refused to infer that those spills could be considered as hazardous, an inference that we would be amenable to make.
In Borota,Division Two affirmed a hospital's motion for summary judgment where plaintiff slipped and fell on milk four floors from the hospital cafeteria. See176 Ariz. 394, 861 P.2d 679. That court declined to use the mode of operation rule to bypass the regular negligence notice requirements. Not only was Borotanot a grocery store or self-service case, but like Contreras,there was evidence in the record that the hospital had a regular maintenance schedule. Id.at 396, 861 P.2d at 681. Further, the court had evidence to determine that spillage was rare enough not to provide notice to hospital that spills were reasonably foreseeable. Id.
Here, no such evidence exists as to what Carniceria does to prevent or remedy spills or the extent to which spills occur.
We do not find persuasive Carniceria's later claims, which the trial court addressed, that the spill cannot be attributed to them because they do not use "bleach" as a cleaning product. Plaintiff indicated the spill was clear, water-like and smelled "like" bleach. It is a question for the jury if Carniceria's cleaning products or the spill met the requisite chemical-like smell.
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______________________
JON W. THOMPSON, Judge
CONCURRING: ______________________
PETER B. SWANN, Presiding Judge
______________________
MICHAEL J. BROWN, Judge