Opinion
6:22-cv-00876-MK
07-26-2023
JULIA WORKMAN, Plaintiff, v. WALMART STORES INC., Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE
Plaintiff Julia Workman (“Plaintiff”) filed this negligence action (ECF No. 1-2) on May 13, 2022 in the Linn County Circuit Court for the State of Oregon against Defendant Wal-Mart Stores (“Defendant'). Defendant timely removed Plaintiff's claims to this Court based on diversity jurisdiction pursuant to 28 U.S.C §1332(a)(1). ECF No. 1. Now before the Court is Defendant's Motion for Summary Judgment on Plaintiff's Premises Liability claims. Because no triable issues of fact exist as to whether Defendant's acts or omissions constituted negligence, Defendant's Motion for Summary Judgment (ECF No. 21) should be granted.
BACKGROUND
This case arises out of an injury Plaintiff sustained while shopping at Defendant's store in Lebanon, Oregon on July 5, 2020. Complaint, ECF No. 1-2 at ¶ 1 (“Compl.”). While turning the corner in the produce aisle, Plaintiff stepped on a cherry tomato, which caused her to slip and fall on her back. Id. at ¶ 4. Plaintiff alleges there were no employees nearby cleaning spilled produce and that the unattended spillage created a slipping hazard. Id. at ¶ 5. It is unclear from Plaintiff's Complaint if there was any additional produce on the floor other than a tomato. Id.; ECF No. 222 at 2. As a result of the fall, Plaintiff suffered severe damage to her back and left knee. Compl. at ¶ 7.
Plaintiff filed her Complaint against Defendant in state court on May 13, 2022, alleging negligence and premises liability, with damages due to medical expenses in the amount of $63,940.30 and non-economic damages due to pain and impaired mobility in the amount of $286,059.70. Id. at ¶¶ 8, 10-11. The action was removed to this Court on June 16, 2022, based on diversity jurisdiction over Defendant, which is incorporated in Delaware. ECF No. 1; Compl. at ¶ 3.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
Plaintiff's sole claim against Defendant is a state law claim of premises liability based on a theory of negligence. Compl. at ¶ 8. The Court thus applies Oregon law. See Alaska Rent-A-Car, Inc. v. Avis Budget Group, 738 F.3d. 960, 973 (9th Cir. 2013) (“[I]n an ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law ... should be followed”) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 259 n. 31 (1975)). Under Oregon law, the duty owed by a property owner to an entrant “depend[s] on whether the person is an invitee, licensee, or trespasser.” Walsh v. C&K Market, Inc., 171 Or.App. 536, 539 (2000).
Here, it is undisputed that at the time of the incident, Plaintiff was an invitee. ECF No. 12 ¶ 1. A property owner owes the greatest duty to an invitee and must warn the invitee of latent dangers, as well as protect the invitee against “dangers in the condition of the premises about which [the property owner] knows” or should have reasonably known. Rich v. Tite-Knot Pine Mill, 245 Or. 185, 192 (1966). The Oregon Supreme Court has held that an invitee who slips on a foreign substance in a store may be able to recover from the business if they can prove one of the following:
(a) That the substance was placed there by the occupant, or
(b) That the occupant knew that the substance was there and failed to use reasonable diligence to remove it, or
(c) That the foreign substance had been there for a length of time that the occupant should, be the exercise of reasonable diligence, have discovered and removed it.Pribble v. Safeway Stores, Inc., 249 Or. 184, 187 (1968) (quoting Cowden v. Earley, 214 Or. 384, 387 (1958)). Defendant argues that summary judgment is appropriate because Plaintiff has not shown a triable issue of fact as to any of the three theories of liability approved by the Oregon Supreme Court in Pribble. The Court agrees.
Here, there is no evidence in the record from which a jury could find that Defendant's conduct caused the tomato to be placed on the floor or that any of Defendant's employees were aware of the tomato on the floor. “[F]or there to be a triable issue as to whether defendant's conduct did or did not meet the appropriate standard of care, there must be evidence of defendant's conduct.” Dubry v. Safeway Stores, Inc., 70 Or.App. 183, 186 (1984) (affirming the lower court's grant of a motion for summary judgment where plaintiff slipped on foreign material in a grocery store). As an initial matter, Plaintiff's Complaint does not allege that Defendant's employees engaged in any conduct that led to the tomato on the floor or were aware of a tomato on the floor. See Compl. Further, in her response to Defendant's interrogatories, Plaintiff does not assert that any of Defendant's employees engaged in conduct creating a slipping hazard or were aware of a tomato on the floor. ECF No. 22-2 at 2. Plaintiff therefore cannot succeed under theories (a) or (b). Pribble, 249 Or. at 187.
As to theory (c) of recovery, Plaintiff's evidence does not establish how long the cherry tomato had been on the floor. See Compl.; Pribble, 249 Or. at 187. Oregon case law recognizes that“[i]n the absence of proof from which a reasonable inference can be drawn as to how long the substance was on the floor, there is no basis for a finding of negligence.” Dubry, 70 Or.App. at 187 (internal quotations omitted). There is no evidence in the record that creates an inference that the cherry tomato had been on the floor for a significant length of time; significantly, there is not even an allegation in the Complaint to clarify whether the tomato had been on the floor “for two seconds or for two hours.” See Dubry, 70 Or.App. at 188 (where there was an equal probability that the leaves customer allegedly slipped on were on the grocery store floor for two seconds or for two hours, there was no basis for a reasonable fact finder to conclude that the leaves were on the floor for a sufficient period of time to establish negligence). There is therefore no factual basis from which a factfinder could conclude that Defendant should have discovered and removed the cherry tomato that caused Plaintiff's fall. Viewing the available evidence in the light most favorable to Plaintiff, there are no outstanding issues of material fact precluding summary judgment. For these reasons, Defendant's motion for summary judgment should be granted.
RECOMMENDATION
For the reasons above, Defendant's motion for summary judgment (ECF No. 21) should be GRANTED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).