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Velasco v. Bodega Latina Corp.

United States District Court, D. Arizona

April 23, 2019

Marisela Velasco, Plaintiff,
Bodega Latina Corporation, et al., Defendants.


          Honorable Roslyn O. Silver, Senior United States District Judge

         Plaintiff Marisela Velasco slipped and fell while shopping at a grocery store owned by Defendant Bodega Latina Corporation. Plaintiff believes Defendant was negligent in allowing a puddle of water to be on the floor. Defendant now seeks summary judgment by arguing it did not have actual or constructive notice of the water. Plaintiff responds that there is a dispute of fact whether Defendants “did enough” in monitoring the condition of the store. (Doc. 37 at 6). Plaintiff has not, however, pointed to evidence in support of her various theories of liability. Therefore, Defendant's motion for summary judgment will be granted.


         Most of the relevant facts are undisputed but where there are disputes, the following presents the facts in the light most favorable to Plaintiff. On May 20, 2016, Plaintiff was grocery shopping at Defendant's store. While walking through the store, Plaintiff slipped and fell on a puddle of water in the store's produce section. The incident was captured on surveillance video.

         The surveillance video depicts two aisles, with bins of produce between them. At 2:15 p.m., the video shows two women pushing a shopping cart down the left-hand aisle. There is a young child seated in the shopping cart. The cart stops next to a produce bin and one of the women begins to select produce. The other woman is looking at her phone. While stopped, the young child reaches down into the cart and picks up what appears to be a container of liquid. The child seems to drink from the container and, at 2:18:35 p.m., tries to put the container back in the cart but the container tips over. The video does not show liquid spilling out but the woman who was looking at her phone quickly straightens the container and then throws up her hands, as if in frustration. Neither woman attempts to clean up a spill nor does either woman alert an employee. At 2:18:59 p.m., the women and child continue down the aisle.

         The video shows a few other customers walking in the area where the women and child had been. It does not appear that anyone notices water on the floor. At 2:20:00 p.m., one of Defendant's employees appears in the video. That employee walks down the right-hand aisle. While walking down the aisle, the employee is often looking to her left, away from the area of the puddle. When almost parallel with the puddle in the left-hand aisle, the employee turns and continues down a perpendicular aisle. The employee does not go into the left-hand aisle and there is no indication from all the evidence offered that the employee could have seen the puddle from her position in the right-hand aisle.[1] At 2:22:09 p.m., Plaintiff can be seen walking down the left-hand aisle. At 2:22:31, Plaintiff slips on a puddle of water and falls to the ground, suffering injuries.

         In its summary judgment briefing, Defendant argues the puddle of water on which Plaintiff slipped originated from the child in the shopping cart. If that is accurate, the water was on the floor for slightly less than four minutes. Plaintiff disagrees that the puddle of water originated from the child. Instead, Plaintiff appears to believe the water was on the floor for a longer period. Plaintiff, however, has not offered any evidence supporting an alternative source for the water.

         On the day of Plaintiff's fall, Defendant had two employees patrolling the store looking for spills or other hazards. As described by the store manager, Defendant “always has two employees on duty, referred to as ‘runners,' whose only job was to ‘[s]weep and just look for any -- anything that can cause an incident on the floor for our employees or customers.” (Doc. 35 at 2). Usually one of those runners was assigned to the produce section, the section where Plaintiff fell. (Doc. 35-5 at 53). Defendant required its runners to sign “sweep sheets” every thirty minutes indicating they checked the areas they were responsible for. The sweep sheets for the date of Plaintiff's fall indicate the produce area was checked and cleaned at 2:00 p.m., approximately twenty-two minutes before Plaintiff's fall. (Doc. 35-6).

         In June 2017, Plaintiff filed suit in Maricopa County Superior Court alleging Defendant had maintained its store in an “unreasonably dangerous condition” by allowing a puddle of water to be on the floor. (Doc. 1-2 at 4). Defendant answered the complaint and the parties proceeded with litigation in state court. In July 2018, Defendant removed the case to federal court. The Court informed Plaintiff she could obtain remand if she objected based on the timeliness of the removal. Plaintiff chose not to object on that basis and the case remained in federal court.


         I. Federal Summary Judgment Law Applies

         Defendant seeks summary judgment on Plaintiff's sole claim for negligence. Because this case is in federal court based on diversity jurisdiction, “the procedural aspects of summary judgment are governed by the Federal Rules of Civil Procedure, and the law of the forum controls the substantive issues.” Cuprite Mine Partners LLC v. Anderson, 809 F.3d 548, 554 (9th Cir. 2015). Thus, contrary to Plaintiff's arguments that Arizona's law regarding summary judgment should apply, the Court must apply federal summary judgment law while still applying Arizona substantive law.

         Under federal summary judgment law, Defendant has the initial burden of producing “evidence negating an essential element” of Plaintiff's claim or “show[ing] that [Plaintiff] does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If Defendant carries that initial burden, the burden shifts to Plaintiff to produce at least “enough evidence to create a genuine issue of material fact.” Id. at 1103. Such evidence must be more than “[a] scintilla, ” more than “merely colorable, ” and cannot rest on speculation. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989); United States Postal Serv. v. Ester, 836 F.3d 1189, 1198 (9th Cir. 2016) (speculation not enough to defeat summary judgment). If all Plaintiff offers is speculation about what might have happened, the Court must grant summary judgment in favor of Defendant. Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.”).

         II. Arizona ...

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