United States District Court, D. Arizona
Honorable Roslyn O. Silver, Senior United States District
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.
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.
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
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. 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.
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
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).
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.
Federal Summary Judgment Law Applies
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
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