United States District Court, D. Oregon, Portland Division.
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
Plaintiff, Imelda Cardenas ("Cardenas"), filed a Complaint in the Multnomah County Circuit Court alleging one claim for negligence against defendant, Wal-Mart Stores, Inc. ("Wal-Mart"), arising from injuries that she suffered on August 29, 2011, when she slipped and fell in the Wood Village Wal-Mart Supercenter Store #2927. Pursuant to 28 USC § 1441(a), Wal-Mart timely removed the case to this court based on diversity jurisdiction pursuant to 28 USC § 1332(a)(1). This court has jurisdiction based on complete diversity between the parties and alleged damages which exceed $75, 000.00.
All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c).
Pursuant to FRCP 56(c), Wal-Mart had filed a Motion for Summary Judgment (docket #16). For the reasons stated below, that motion is granted.
Summary judgment may be granted if "no genuine issue" exists regarding any material fact and "the moving party is entitled to judgment as a matter of law." FRCP 56(c). The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and designate specific facts showing a "genuine issue for trial." Id at 324, citing FRCP 56(e). The court must "not weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir 1999) (citation omitted). A " scintilla of evidence, ' or evidence that is merely colorable' or not significantly probative, '" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir 1989) (citation omitted). The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir 2000) (citation omitted). The court must view the inferences drawn from the facts "in the light most favorable to the non-moving party." Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir 2011) (citations omitted).
Oregon law applies to the substantive law of negligence based on diversity jurisdiction. See Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 973 (9th Cir 2013) (applying Alaskan law to the question of attorney's fees because the state law is substantive).
During the evening of August 29, 2011, Cardenas was shopping at the Wood Village Wal-Mart Supercenter Store #2927 with her adult daughter, Susana Cardenas ("Susana"), and her granddaughters, Noeli, Kimberly, and Daisy. Notice of Removal, Ex. B ("Complaint"), ¶ 3; Cardenas Depo., pp. 9, 11. Wal-Mart controls the daily operations of the Wood Village store. Id, ¶ 4.
The Wood Village has two customer entrances. Susana Depo., p. 11. Cardenas and her family went in the right-hand entrance, walked down the aisle, and turned left past some self-checkout registers. Id; Cardenas Depo., p. 14. Cardenas was wearing platform flip-flops. Cardenas Depo., p. 22. Within approximately five minutes of entering the store, she slipped in a puddle of liquid on the store floor and fell. Complaint, ¶ 7; Susana Depo., p. 10. At the time of the accident, Susana was pushing a cart approximately five feet in front of Cardenas with Noeli at her side. Cardenas Depo., p. 12; Susana Depo., pp. 13-14. Kimberly and Daisy were walking on either side of Cardenas. Cardenas Depo., p. 14; Susana Depo., p. 14. Neither Cardenas nor Susana saw the puddle before the fall. Cardenas Depo., p. 38. After the fall, Susana noticed the puddle was liquid. Susana Depo., p. 15. The liquid was clear, appeared to be "water, Sprite, or something, " "more or less roundish, " and three or four inches in diameter. Id, pp. 15-16. The leg of Cardenas's tan-colored pants was wet and stained "with something like chocolate or something" from the fall. Cardenas Depo., p. 38; Susana Depo., pp. 17, 22, 42.
Cardenas fell perpendicular to the aisle and landed on her right shoulder and neck. Cardenas Depo., pp. 21-22, 24. Susana remembered that it was a busy time at the store. Susana Depo., p. 10. Lots of people gathered to help Cardenas, while Susana "requested that an ambulance be called." Id, p. 15; Cardenas Depo., p. 37. Cardenas was turned on her front, and Susana bundled clothing under her face to support her neck until the ambulance arrived. Susana Depo., pp. 28-29; Cardenas Depo., p. 24.
As a result of the fall, Cardenas "sustained a twisting, tearing, and wrenching of the soft tissue and muscles in her back, neck, and shoulder." Complaint, ¶ 11. She also endured a "full thickness tear of the distal supraspinatus tendon with approximately 2 cm tendon retraction, mild joint capsule edema, mild to moderate impingement on the supraspinatus, tendon, large glenohumeral joint effusion, moderate subacromial/subdeltoid bursal edema, and sucoracoid bursal edema." Id. The fall and subsequent injuries caused Cardenas to suffer pain, inconvenience, and interference with her normal and usual activities in an ...