Opinion
1 CA-CV 23-0762
10-10-2024
JILL LIBRETTI, Plaintiff/Appellant, v. QUIKTRIP CORPORATION, et al., Defendants/Appellees.
Valdez Law, P.L.L.C., Phoenix By Josh A. Valdez, Joseph A. Hoxie Counsel for Plaintiff/Appellant The Cavanagh Law Firm, P.A., Phoenix By Karen C. Stafford, Andrea M. Swan Counsel for Defendant/Appellee QuikTrip Corporation
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2022-002260 The Honorable Susanna C. Pineda
Valdez Law, P.L.L.C., Phoenix By Josh A. Valdez, Joseph A. Hoxie Counsel for Plaintiff/Appellant
The Cavanagh Law Firm, P.A., Phoenix By Karen C. Stafford, Andrea M. Swan Counsel for Defendant/Appellee QuikTrip Corporation
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Maria Elena Cruz and Judge David D. Weinzweig joined.
MEMORANDUM DECISION
THUMMA, JUDGE:
¶ 1 This appeal turns on how quickly a retailer must act to correct or warn a customer of a known unreasonably dangerous condition to avoid liability for resulting personal injury as a matter of law. In granting summary judgment, the superior court found liability for a customer's slip and fall was precluded because less than half a minute passed between the moment the retailer saw ice cream fall on the floor and the customer's fall. Because the record presents a genuine issue of material fact, summary judgment is reversed, and this matter is remanded for further proceedings.
FACTS AND PROCEDURAL HISTORY
¶ 2 In October 2020, plaintiff Jill Libretti was in a Phoenix QuikTrip store when she slipped on ice cream that another customer had spilled on the floor. Libretti fell, was hurt and filed this suit.
¶ 3 The incident was captured on a surveillance video. Less than a minute before Libretti's fall, another customer bought two soft-serve ice cream cones, spilling one on the floor. After seeing the spill, one employee "working in the kitchen" made the other customer another ice cream cone. Twelve seconds "after the ice cream hit the ground," another employee working as cashier noticed the spill and yelled to a third employee to clean it up. As the third employee was on his way to clean up the spill, Libretti slipped and fell. The ice cream was on the floor for less than 30 seconds before Libretti's fall. After Libretti fell, the third employee helped her get up, placed a "Wet Floor" sign near the spill and began cleaning it up.
¶ 4 Libretti sued QuikTrip and the three employees. Libretti alleged the ice cream spill was an unreasonably dangerous condition, that defendants knew of the spill and allowed it to remain on the floor until Libretti fell and that defendants failed to correct or warn her of the unreasonably dangerous condition caused by the spill.
¶ 5 Defendants admitted that the cashier saw the ice cream on the floor "during the 22 seconds between the fall of the ice cream and [Libretti's] fall" and that Libretti "slipped on the ice cream," but denied any allegations that they failed to correct or warn of an unreasonably dangerous condition.
¶ 6 Defendants moved for summary judgment, arguing "it cannot be disputed by any reasonable person that the presence of ice cream on the store floor for a mere 22 seconds was not an unreasonable dangerous condition." Libretti countered that there were genuine issues of material fact, including whether defendants discharged their duty to correct or warn her of the unreasonably dangerous condition.
¶ 7 After oral argument, the superior court granted defendants summary judgment, finding "[t]he short period of time, approximately 10 seconds, from the spill to when employees began to take action to clear the spill, was reasonable as a matter of law." "Under these facts, there is no evidence which creates a jury question as to Defendants' knowledge of the potential hazard or its conduct after receiving notice of the hazard."
¶ 8 After entry of final judgment, Libretti timely appealed. This court has appellate jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1)(2024).
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.
DISCUSSION
¶ 9 Summary judgment is appropriate when the moving party shows "no genuine dispute as to any material fact" and is thus "entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). This court reviews the grant of summary judgment de novo, Am. Furniture Wearhouse Co. v. Town of Gilbert, 245 Ariz. 156, 159 ¶ 9 (App. 2018), viewing the facts in the light most favorable to the nonmoving party, Normandin v. Encanto Adventures, LLC., 246 Ariz. 458, 460 ¶ 9 (2019).
¶ 10 "The proprietor of a business premises is not an insurer of the safety of invitees and is not required at his peril to keep the premises absolutely safe." Berne v. Greyhound Parks of Ariz., Inc., 104 Ariz. 38, 41 (1968). Similarly, "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 (1981). Defendants, however, owed Libretti a duty to protect her "'against unreasonable risks of harm.'" Gipson v. Kasey, 214 Ariz. 141, 143 (2007) (citations omitted); accord Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 355 (1985) (businesses owe business invitees "'an affirmative duty' to use reasonable care to make the premises safe for use by invitees") (citation omitted). Among other things, this duty includes an obligation to correct or warn of unreasonably dangerous conditions known to the business owner. See McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 252-53 ¶ 23 (App. 2013) (citing authority). Such a warning "must allow the invitee to decide intelligently whether to accept an invitation to enter the property and, if the invitee chooses to do so, protect himself against any danger." Robertson v. Sixpence Inns of America, 163 Ariz. 539, 544 (1990) (citing authority).
¶ 11 Defendants do not dispute that they owe a duty to keep the floors of QuikTrip stores clean, and clear from things like spilled ice cream, and to correct or warn customers of such hazards. As to whether defendants breached that duty, at the very least, the record here would allow a jury to find defendants "had actual knowledge or notice of the existence of the foreign substance or dangerous condition" before Libretti fell. See Walker v. Montgomery Ward &Co., 20 Ariz.App. 255, 258 (1973). "The issue of whether the owner of premises open to the public has exercised the care required of him to keep them in a reasonably safe condition for his invitees generally is a question of fact for the jury." Id. (citing authority). The issue, then, is whether the superior court properly found Libretti could not, as a matter of law, show that defendants breached the duty they owed to her.
For this reason, defendants' supplemental citation to Perez v. Circle K Convenience Stores, Inc., 257 Ariz. 244 (App. 2024) is misplaced. Perez concluded that "neither the law nor the evidence suggestions that there was an unreasonably dangerous condition that would establish a duty in this case." Id. at 250 ¶ 25. That legal issue is different than the typically-fact-based issue of whether a duty was breached, which is presented in this appeal.
¶ 12 Many cases cited by parties address whether a business knew of a dangerous condition. See, e.g., McGuire v. Valley Nat. Bank of Phoenix, 94 Ariz. 50, 55 (1963) (discussing whether substance causing fall was present "for a sufficient length of time to permit the defendant, in the exercise of due care, to discover and remove it"); Berne, 104 Ariz. at 39 (similar); Lippincott v. State, 162 Ariz. 171, 173 (App. 1989) (similar); Walker v. County of Coconino, 12 Ariz.App. 547, 550-51 (1970) (similar); see also Chaira v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 399 (1987) (quoting Walker). Here, however, the record indicates defendants had actual notice of the ice cream spill, making these cases irrelevant.
¶ 13 Given the short time between the spill and Libretti's fall, defendants argue that they did not, as a matter of law, breach their duty to clean up the spill or warn Libretti about it. In essence, they argue that it was impossible for them to clean up the spill or warn Libretti before she fell. The record, however, does not mandate such a conclusion.
¶ 14 As to cleaning up the spill, two of the three individual defendants testified that they could clean up the spill, and the third explained that she did not immediately do so given QuikTrip training. The record shows that, before Libretti slipped and fell, one defendant was directing the cleanup, and another was on his way to clean up the spill. The record does not show that it was impossible for them to have cleaned up the spill before Libretti fell, even though the time to do so was brief. Whether a business owner took reasonable, but not impossible, actions to correct an unreasonable condition before a business invitee was injured classically is a question of fact for the jury. Walker, 20 Ariz.App. at 258 (citing authority).
¶ 15 Defendants also had a duty to warn Libretti of the spill. See McMurtry, 231 Ariz. at 252-53 ¶ 23 (citing authority). They did not do so. The superior court concluded Libretti "was not in the building at the time [of the spill]. Any warning at that time would have been of no consequence." But that conclusion presumes that defendants could issue only one warning at the time of the spill, rather than multiple warnings when additional customers entered the store. There is no suggestion in this record that defendants could not have provided such warnings.
¶ 16 The out-of-state cases relied upon by the superior court are not binding, apply different substantive law and are distinguishable. This is not a case applying a different substantive rule of law to an accident following a severe weather incident. See Sfakianos v. Big Six Towers, Inc., 846 N.Y.S.2d 584, 584 (App. 2007) ("accepting as true the plaintiffs' assertions with respect to when the snowstorm ceased and when the accident occurred, the defendant established its prima facie showing of entitlement to judgment as a matter of law") (citations omitted). Nor is this a case where plaintiff "does not know what, if anything, caused her to fall," Christopher v. Donna's Country Store, 511 S.E.2d 579, 581 (Ga.App. 1999), or where defendant placed "two warning signs . . . in the area of the spill" before plaintiff fell, Scherer v. Golub, 956 N.Y.S.2d 275, 276 (App. 2012). Instead, this case is more akin to Parietti v. Wal-Mart Stores, Inc., also cited by the superior court, which reversed summary judgment for defendants, concluding "[t]riable issues of fact exist," including whether defendants had "a reasonable time to correct or warn about" the existence of a hazardous condition. 83 N.E.3d 853, 853 (N.Y. 2017).
¶ 17 Nor do the out-of-state cases QuikTrip cites on appeal alter the analysis. Byrd v. Walmart, Inc. does not discuss or mention the duty to warn applicable here. 8 N.Y.S.3d 428, 428 (App. 2015); see also Pickering Corp. v. Goodwin, 534 S.E.2d 518, 520 (Ga.App. 2000) (applying Georgia law that, unlike Arizona law, imposed no "duty to immediately clean up spills or post signs warning customers of the potential danger" on the facts presented); Dominguez v. Publix Super Markets, Inc., 187 So.3d 892, 894 (Fla. App. 2016) (noting there was no issue about "whether [defendant] failed to warn [plaintiff] of the substance on the store floor" because, unlike this case, it was "an open and obvious condition"). Using a clearly erroneous standard of review not applicable here, Waters v. Winn-Dixie Stores, Inc., affirmed "a final order of involuntary nonsuit" where the evidence failed to show defendant "had knowledge of [the spill] for a length of time in which to" warn plaintiffs of the hazard. 146 So.2d 577, 578, 580 (Fla. App. 1962). And Frederick v. Dogencorp, LLC, found "genuine issues of material fact remain as to whether [defendant] breached its duty to warn [plaintiff] of the danger pose[d] by the liquid" on the floor, vacating summary judgment and remanding for further proceedings. 304 So.3d 36, 37 (Fla. App. 2020).
¶ 18 The superior court's analysis here is based on the thought that a business can leave unresolved an unreasonably dangerous condition for some period of time without facing possible liability. No applicable authority supports that proposition. Nor is there a minimum amount of time that a business can take to correct or warn customers about a known unreasonable condition without facing potential liability. On this record, resolution of those questions is a disputed issue of material fact that cannot be resolved by summary judgment. Ariz. R. Civ. P. 56(a).
CONCLUSION
¶ 19 The judgment is reversed, and this matter is remanded for further proceedings.