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Coronado v. Costco Wholesale Corp.

United States District Court, D. Arizona

October 23, 2019

Enedina Coronado, et al., Plaintiffs,
Costco Wholesale Corporation, et al., Defendants.


          Honorable Susan M. Brnovich United States District Judge

         Pending 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.”), and Defendant filed a Reply (Doc. 26, “Reply”). Oral argument was held on October 21, 2019. (Doc. 35.) The Court has considered the Motion, Response, and Reply and enters the following Order:

         I. BACKGROUND

         Plaintiff 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).


         Federal 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).

         In 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)).


         Defendant 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.

         a. Cognizable Legal Theory

         Defendant's 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.”[1] (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 tread.

         For 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 stage.

         The 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.

         Defendant 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 ...

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