Opinion
3:15-cv-00002-HDM-WGC
11-18-2015
STEPHANIE RIDGWAY, Plaintiff, v. SUN VALLEY GENERAL IMPROVEMENT DISTRICT, Defendant.
ORDER
Defendant Sun Valley General Improvement District ("defendant") operates the Sun Valley pool ("the pool"). (Mot. Summ. J. Ex. 1 (Ariztia Aff. ¶ 4)). Defendant, a political subdivision of the State of Nevada, assumed control of the pool from Washoe County in 2010. Id. Plaintiff Stephanie Ridgway ("plaintiff"), a citizen of California, visited the pool on June 20, 2014. (See Compl. ¶¶ 1, 4). After going down one of the water slides, plaintiff struck her foot on the bottom of the pool. (Compl. ¶ 5). Plaintiff suffered injuries as a result of the incident and sought medical treatment. (Compl. ¶ 10).
On January 2, 2015, plaintiff filed a complaint (#1) against defendant asserting a single claim for breach of duty to exercise reasonable care. Before the court is defendant's motion for summary judgment (#19). Plaintiff responded (#20) and defendant replied (#23).
Standard
In a diversity case, substantive summary judgment issues are determined by state law. Bank of Cal. v. Opie, 663 F.2d 977, 980 (9th Cir. 1981). Summary judgment shall be granted "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The burden of demonstrating the absence of a genuine issue of material fact lies with the moving party, and for this purpose, the material lodged by the moving party must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998). A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the differing versions of the truth. Lynn v. Sheet Metal Workers Int'l Ass'n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).
Once the moving party presents evidence that would call for judgment as a matter of law at trial if left uncontroverted, the respondent must show by specific facts the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). "A mere scintilla of evidence will not do, for a jury is permitted to draw only those inferences of which the evidence is reasonably susceptible; it may not resort to speculation." British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) ("[I]n the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free . . . to grant summary judgment."). Moreover, "[i]f the factual context makes the non-moving party's claim of a disputed fact implausible, then that party must come forward with more persuasive evidence than otherwise would be necessary to show there is a genuine issue for trial." Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998) (citing Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)). Conclusory allegations that are unsupported by factual data cannot defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Analysis
As an initial matter, plaintiff and defendant agree that Nevada law applies to this case. (See Mot. Summ. J.; Pl. Opp'n to Mot. Summ. J.).
Under Nevada law, political subdivisions are provided immunity for: (1) failing to inspect, whether or not a duty to inspect exists; or (2) failing to discover a hazard, whether or not an inspection is performed. NEV. REV. STAT. § 41.033(1). As the Nevada Supreme Court explained in Nardozzi v. Clark County School District, 108 Nev. 7, 9, 823 P.2d 285, 287 (1992), immunity under NRS § 41.033(1)"will not bar actions based upon a public entity's failure to act reasonably when it has express knowledge of a hazard." See also Chastain v. Clark Cty. Sch. Dist., 109 Nev. 1172, 1175, 866 P.2d 286, 288 (1993); Lotter v. Clark Cty. Bd. of Comm'rs, 106 Nev. 366, 793 P.2d 1320 (1990). Plaintiff has set forth specific facts showing a genuine issue for trial as to whether defendant had express knowledge of a hazard prior to plaintiff's injury.
The crux of defendant's motion is that there is no evidence that anyone other than plaintiff has ever been significantly injured by striking the bottom of the pool after using the slide. Defendant provided an affidavit from Michael Ariztia, Public Works Director for defendant from August 1, 2007, through June 12, 2015, which states that all incidents involving injuries to patrons at the pool were reported to him. (Mot. Summ. J. Ex. 1 (Ariztia Aff. ¶ 5)). The affidavit states that Mr. Ariztia is not aware of any incidents at the pool where a patron was "injured significantly enough to require any medical attention by virtue of coming into contact with the bottom of the swimming pool after using one of the slides." (Id. at ¶ 8).
Additionally, Mr. Ariztia's affidavit states that when defendant began operating the pool, Washoe County never advised it "of any particular or unusual problems" with the slides. (Id. at ¶ 6). Mr. Ariztia asserts that "the most common incidents involving the slides at the pool involved young children who used the slides and had to be rescued from the water when they could not touch the bottom because the pool was too deep for them or because they were otherwise in distress." (Id. at ¶ 7). Defendant claims that plaintiff's incident was unprecedented and, therefore, argues that the absence of prior accidents demonstrates that defendant had no express knowledge that an adult using the water slide could strike the bottom of the pool with sufficient force to cause significant injury. Defendant contends that it is entitled to immunity because there is no admissible evidence showing that it had express knowledge of a hazard.
Plaintiff, however, provided depositions from two lifeguards at the Sun Valley pool who testified that, prior to the incident with plaintiff on June 20, 2014, other users of the slide scraped the bottom of the pool. (Pl. Opp'n to Mot. Summ. J. Ex. 5 (Pachnik Dep. 11:9-24), Ex. 6 (Ray Dep. 10:24-25, 11:1-25, 12:1-5, 13:10-15)). One of the lifeguards also testified that he hit the bottom of the pool after using the water slide. (Pl. Opp'n to Mot. Summ. J. Ex. 6 (Ray Dep. 12:6-8)).
In reply defendant asserts that the testimony from the lifeguards supports its contention that defendant "was not on actual notice of any condition in the pool's waterslide that is relevant to Plaintiff's injury, i.e., a situation where someone significantly injured themselves after using the slide and striking the bottom of the pool." (Reply to Mot. Summ. J. at 6). Defendant highlights the difference between hitting the bottom of the pool and striking the bottom of the pool with significant force to cause any sort of injury. (Id. at 9). Thus, Defendant focuses on its lack of express knowledge of the potential consequences from the alleged hazard.
The Nevada Supreme Court has found that the issue of whether the governmental entity had express knowledge of the existence of the alleged hazardous condition is distinct from whether the governmental entity acknowledged that it constituted a hazardous condition. See Chastain v. Clark Cty. Sch. Dist., 109 Nev. 1172, 1178, 866 P.2d 286, 289 (1993). In Chastain v. Clark County School District, the Nevada Supreme Court stated that "Nardozzi does not require that the public entity acknowledge as hazardous a condition of which it has express knowledge. Rather, the entity need only have express knowledge of the existence of the condition." Id. Thus, defendant's emphasis on the severity of injuries is misplaced because "whether a particular condition constitutes a hazard is a question of fact for the jury." Id. at 1178. Moreover, in Chastain, the Nevada Supreme Court defined the alleged hazardous conditions as the "sandbox low in sand and the broken bottles therein," and did not connect it to Chastain's injury, i.e. a child getting pushed into the sandbox and being injured significantly enough to require any medical attention. Id. at 1172. For purposes of determining immunity, the issue is whether defendant knew the depth of the pool was a hazard, not whether the depth of the pool would cause significant injuries requiring medical attention.
The court finds defendant's efforts to distinguish the facts of this case from Chastain and Nardozzi unavailing. (Reply to Mot. Summ. J. at 11-12). The statute does not differentiate between transient/temporary hazardous conditions and fixed/static hazardous conditions. See NEV. REV. STAT. § 41.033(1). --------
In ruling on a motion for summary judgment, the court must construe the evidence and the inferences which flow from the evidence in the light most favorable to the non-moving party, here plaintiff Stephanie Ridgway. See Guidroz-Brault v. Missouri Pacific R. CO., 254 F.3d 825, 829 (9th Cir. 2001). The evidence presented in this case can lead to the inference that defendant had express knowledge of the alleged hazard. Thus, plaintiff has raised a genuine issue of material fact that precludes summary judgment on the issue of whether the defendant is entitled to governmental immunity. Therefore, defendant's motion for summary judgment (#19) is DENIED.
IT IS SO ORDERED.
DATED: This 18th day of November, 2015.
/s/_________
UNITED STATES DISTRICT JUDGE