United States District Court, D. Arizona
Honorable Susan M. Brnovich United States District Judge
before the Court is Defendant Costco Wholesale
Corporation's Motion to Dismiss Count Two of
Plaintiffs' First Amended Complaint, (Doc. 23,
“Mot.”), under Federal Rule of Civil Procedure
12(b)(6). Plaintiffs filed a Response (Doc. 25,
“Resp.â), and Defendant filed a Reply (Doc. 26,
âReplyâ). Oral argument was held on October 21, 2019. (Doc.
35.) The Court has considered the Motion, Response, and Reply
and enters the following Order:
Enedina Coronado slipped on liquid detergent while shopping
at Costco. (Doc. 22 at 1.) Along with her husband, Armando
Romero, (“Plaintiffs”) Coronado filed a complaint
against Costco Wholesale Corporation
(“Defendant”) in Maricopa County Superior Court
on October 29, 2018. (Doc. 1-3 at 2-4). Defendant removed.
(Doc. 1.) After seeking leave to amend, Plaintiffs filed a
First Amended Complaint on May 30, 2019. (Doc. 22.) They seek
recovery under two distinct legal theories: premises
liability and products liability. (Doc. 22.) Defendant moves
to dismiss the latter claim under Rule 12(b)(6).
Rule of Civil Procedure 8(a) requires that a complaint
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” A
complaint must provide the defendant with “fair
notice” of the claims against it and the grounds upon
which it rests. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)); Fed.R.Civ.P. 8(a)(2). Dismissal under Rule
12(b)(6) “can be based on the lack of a cognizable
legal theory or the absence of sufficient facts alleged under
a cognizable legal theory.” Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). A
complaint that sets forth a cognizable legal theory will
survive a motion to dismiss if it contains sufficient factual
matter, which, if accepted as true, states a claim to relief
that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). Facial plausibility
exists if the pleader sets forth “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. Plausibility does not equal
“probability, ” but requires “more than a
sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint
pleads facts that are ‘merely consistent' with a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557).
ruling on a Rule 12(b)(6) motion to dismiss, the well-pled
factual allegations are taken as true and construed in the
light most favorable to the nonmoving party. Cousins v.
Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However,
legal conclusions couched as factual allegations are not
given a presumption of truthfulness, and “conclusory
allegations of law and unwarranted inferences are not
sufficient to defeat a motion to dismiss.” Pareto
v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). Generally, a
district court “may not consider any material beyond
the pleadings in ruling on a Rule 12(b)(6) motion.”
Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th
Cir. 2001), overruled on other grounds by Galbraith v.
County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)).
moves to dismiss Count Two of Plaintiffs' First Amended
Complaint. Defendant identifies two independent faults with
Plaintiffs' products liability claim: (1) lack of a
cognizable legal theory; and (2) insufficient factual
allegations to support a cognizable legal theory. (Mot. at
3.) The Court analyzes each in turn.
Cognizable Legal Theory
argument is three-fold. Defendant first argues that
Plaintiffs' products liability claim is not a cognizable
legal theory because Arizona law prohibits Plaintiffs from
alleging a products liability claim alongside a premises
liability claim. Defendant contends the products liability
claim wrongly applies strict liability to a negligence-based
premises liability action. (Mot. at 1.) Defendant next claims
this proposition is supported by Arizona case law but admits
that no Arizona case “addresses th[at] precise
question.” (Mot. at 3.) Defendant instead looks to
out-of-state case law as persuasive authority to support
“Arizona's implicit recognition that there cannot
be a strict liability theory in a premises liability
case.” (Mot. at 5.) This Court declines Defendant's
invitation to venture onto ground Arizona courts have yet
one, Defendant is incorrect that Arizona law does not permit
a plaintiff to bring independent strict liability and
negligence claims in the same action. See Shannon v.
Butler Homes, Inc., 102 Ariz. 312, 315-17 (1967)
(considering a products liability and premises liability
claim); Cothrun v. Schwartz, 156 Ariz. 459, 461
(Ariz. App. 1988). Defendant points out that no plaintiff in
an Arizona slip and fall case has successfully recovered
under a products liability theory. That might be correct.
However, Arizona courts regularly permit strict liability
claims to accompany premises liability claims like claim
here. Regardless, the lack of a case where a slip-and-fall
plaintiff brings products liability and premises liability
claims in a single cause of action and successfully recovers
does not mean the claims cannot be pled together. That past
plaintiffs failed does not mean that future plaintiffs cannot
succeed as a matter of law. Although the strict liability
claims asserted in such cases do not typically survive
dismissal or summary judgment, this Court finds no case where
Arizona courts hold products liability and premises liability
claims are incompatible theories of recovery. See Vega v.
Griffiths Const., Inc., 172 Ariz. 46, 48 (Ariz. App.
1992) (rejecting a product liability claim on appeal from
summary judgment for failure to prove the product had entered
the stream of commerce); Cothrun v. Schwartz, 156
Ariz. at 461 (considering products liability and negligence
claims resulting from asbestos contamination on appeal from a
grant of summary judgment). While Defendant argues that
Arizona courts have never held that a proprietor is
strictly liable for all injuries that occur on its premises,
they have allowed those claims to proceed past the pleading
Federal Rules of Civil Procedure explicitly authorize
litigants to present alternative or inconsistent pleadings.
Fed.R.Civ.P. 8(e)(2). A party may set forth multiple
statements of a claim or defense “alternatively or
hypothetically . . . regardless of consistency.”
Id. Rule 8's liberal pleading policy supports
the Ninth Circuit's historical reluctance to permit one
pleading to be read as a judicial admission against an
alternative pleading. See Molsenbergen v. U.S., 757
F.2d 1016, 1018-19 (9th Cir. 1985). With no Arizona case
explicitly barring Plaintiffs from bringing products
liability and premises liability claims jointly, this Court
will not create such a rule.
argues that Arizona case law implicitly recognizes the
incompatibility of strict liability and premises liability
theories of recovery. This Court is not convinced.
Defendant's cases clearly enunciate some fundamental
principles of premises liability- that a business
proprietor's affirmative duty of care is not limitless,
and liability is only triggered when specific knowledge
requirements are met. They establish that a possessor of a
premises is certainly not an insurer of an invitee's
safety, at least as to conditions from which an unreasonable
risk of harm is not anticipated. See Berne v.
GreyhoundParks of Ariz., Inc., 104 Ariz. 38,
41 (1968) (citing § 343 Restatement of Torts 2nd). These
cases do not, however, establish that ...