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Taylor v. Thrifty Payless, Inc.

United States District Court, D. Oregon

May 12, 2017

THRIFTY PAYLESS, INC., a California Corporation doing business as RITE-AID, Defendant.

          Jess M. Glaeser JESS M. GLAESER, PC Attorney for Plaintiff.

          John R. Barhoum Sarah Tuthill-Kveton CHOCK BARHOUM, LLP Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge.

         Plaintiff Karen Taylor brings a negligence claim against Defendant Thrifty Payless, Inc. for personal injuries sustained in a slip and fall in a Rite-Aid store in Portland. Defendant moves for summary judgment. Because Plaintiff produces no evidence from which a reasonable juror could conclude that Defendant actually knew, or reasonably should have known, about the spill before Plaintiff's fall, I grant Defendant's motion.


         Defendant operates a drugstore in downtown Portland, Oregon. Plaintiff works nearby and was a customer in Defendant's store on February 13, 2014. According to Plaintiff, around midday, she left her office, walked to Defendant's store, and shopped there for five to ten minutes. Tuthill-Kveton Decl. Ex. 1 (“Pl.'s Dep.”) 51:10-11, 53:14-17, ECF 21-1. Plaintiff was near the end of an aisle examining an item on the shelf when stepped and immediately fell in a large puddle, roughly two feet by two feet. Id. at 57:24-58:2, 60:4-14, 69:7-9. The liquid she slipped in was brown or yellow in color, and she believed it could have been broth or soup. Id. at 69:3-14.

         Plaintiff testified in her Deposition that after she fell, she waited for about five minutes in a cashier's line, then told the cashier that she had fallen and asked for paper towels which she used to wipe herself off. Id. at 68:12-15, 71:6-9, 74:8-12.[1] Afterward, Plaintiff returned to where she fell, where she noticed one, perhaps two, “cones” on the ground near the spill. Id. at 68:16- 23, 74:4-19. There, Plaintiff warned another customer about the spill before the other customer could step in it. Id. at 68:17-23. Plaintiff then returned to her office, where she sent an email to her administrative assistant, time-stamped 11:11 a.m. Taylor Decl. ¶ 2, ECF 24. Plaintiff testified that she returned to Defendant's store about thirty minutes later. Pl.'s Dep. at 71:22-72:14. According to Nicole Fitz, one of Defendant's employees, Plaintiff told Fitz that she had slipped on the floor and asked to speak with a manager. Fitz notified Terrel West, the manager. Tuthill-Kveton Decl. Ex. 2 (“Fitz Dep.”) at 21:25-22:3, 22:17-18, 31:3-22, ECF 21-2; Tuthill-Kveton Decl. Ex. 3 (“West Dep.”) at 25:13-17, ECF 21-3.[2] Fitz testified that she saw West and Plaintiff talking. Fitz Dep. at 25:12-17.

         Fitz typically worked from 7:00 a.m. to 3:30 p.m., and took her lunch break between 11:00 a.m. and 11:30 a.m. Fitz Dep. at 29:19-23, 9:15-25. On her way back from her lunch break, Fitz noticed two “wet floor” signs at the end of one of the aisles. Id. at 22:22-24:2. She did not recall whether she saw them before her lunch break began. Id. at 24:3-9.

         West testified that he first learned that there was liquid on the floor when he got a call from a cashier, whom he believed to be Fitz, sometime before noon. West Dep. at 14:12-22, 16:14-20. The cashier told him there was a wet cleanup in Aisle 11. Id. at 16:14-20. West testified that he believed a customer other than Plaintiff had reported the spill. Id. at 20:19-24. After being told of the spill, West set up a pair of wet-floor signs before heading to the basement to fetch a mop and bucket. Id. at 14:19-25, 16:14-25. West testified that it took him perhaps three to five minutes to retrieve the items and bring them upstairs. Id. at 22:21-23:3; 25:8-12. West did not know how long the liquid (which he believed was dog urine at the time, but thought that it could also have been human urine) was on the floor before the cashier he believed to be Fitz called him to inform him of the spill. Id. at 19:9-14; 20:16-24. West testified that to his knowledge, at no time before he finished cleaning up the spill did he or any other employee place warning signs other than the two West himself placed. West Dep. at 51:13-17.

         After West brought the mop and bucket to the location of the liquid, Fitz called West, and this time told him that a customer (Plaintiff) wished to speak with him. Id. at 25:8-17. As mentioned above, this is when Plaintiff returned to the store to report her injury approximately thirty minutes after initially leaving, because her hand and wrist had developed significant pain. Pl.'s Dep. at 71:22-72:14. West then left his mop at the site of the spill and spoke with Plaintiff near the front of the store. West Dep. at 25:13-17. Plaintiff told him that she had slipped and that she had not seen any wet-floor signs. Id. at 28:17-21. She told him her hand hurt. Id. at 28:21- 25. West took her information and called it in to Rite-Aid's Risk Management Department. Id. at 28:22-29:2. West testified that when they spoke together, Plaintiff gave no indication of how long it had been since she had fallen. Id. at 29:13-15. He did not notice any wetness on her clothing or body, and did not know whether Plaintiff had slipped before or after he placed the warning signs around the spill. Id. at 29:16-24. After speaking with Plaintiff, West returned to the liquid and finished cleaning it up. Id. at 27:13-15. West testified that the spill did not look like anyone had walked through it, and he saw no tracks leading away from the spill, or any wetness on the ground besides the puddle itself. Id. at 54:15-18, 55:6-9. Later that day, West reviewed the security tapes from that morning, and did so again a day or two later with Risk Management, and found that the cameras did not cover the area of the spill. West Dep. at 36:19-38:5.[3]

         Plaintiff additionally states that “[at] no time while I was in the Rite Aid store do I recall hearing over the intercom any announcement about a wet spill on the floor.” Pl's Decl. ¶ 10. She adds that “[at] no time while I was addressing the cashier or cleaning myself off did I hear or observe the cashier report the spill to her manager or anyone else.” Id. at ¶ 12.

         Although Plaintiff's recitation of the events produces a straightforward timeline, consideration of the testimony of Fitz and West creates ambiguity about the sequence of events after Plaintiff's fall. For example, Plaintiff's assertion that she first observed the cones after she fell but before she left the store the first time, meaning sometime close to 11:00 a.m., contradicts West's testimony that there were no cones until he placed them there after being notified by Fitz, but not until sometime before noon. Further, if, as West alleges, Plaintiff arrived to speak with him three to five minutes after he placed the cones, then Plaintiff may have been gone from the store for only five minutes rather than thirty. However, in that scenario Fitz would then be incorrect about when she took her lunch break, as she must have taken it sometime around 10:30 a.m. in order to have seen the cones up upon her return from lunch and while West was down fetching the mop. In the end, the Court does not need to resolve exactly when these various events took place to resolve the legal issues. The time after the fall is not important. What matters is how long the liquid was on the floor before the fall and whether Defendant knew or should have known of its presence.


         I. Summary Judgment

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)).

         Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for ...

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