United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.
Karen Hoffee ("Hoffee") sues Defendant Walmart,
Inc. ("Walmart") for negligence. The claim arises
from injuries Hoffee sustained when she slipped and fell on
Walmart's premises in McMinnville, Oregon. Walmart moves
for summary judgment asserting there are no genuine issues of
fact, and it is entitled to judgment as a matter of law. For
the reasons set forth below, Walmart's Motion for Summary
Judgment (ECF No. 15) is DENIED. 
September 20, 2017, Hoffee entered the McMinnville Walmart.
(Pl's Am. Compl. ("Compl.") ¶ 2, ECF No.
34.) She entered through a vestibule, the tile floor of which
was partially covered with a carpeted mat. (Decl. of Jessica
Lancaster ("Lancaster Decl."), Dep. of Karen Hoffee
("Hoffee Dep.") at 58:2-12, ECF No. 17-1
Although the mat covered the length of the vestibule, at
three and one-half-feet wide it did not cover the
vestibule's width. (Decl. of Gary Norris ("Norris
Decl"), Ex. 3, ECF No. 36; Dep. of Clinton Nelson
("Nelson Dep.") at 24:1-5, 33:9-21, ECF No. 36-1.)
been raining that day. (Nelson Dep. at 12:3-18.) Walmart had
placed a "wet floor" cone at the entrance, at least
one hour before Hoffee entered the store. (Norris Decl., Ex.
3.) Hoffee entered the vestibule and had taken one or two
steps on the carpet when a person began walking beside her
from her left. (Lancaster Decl., Hoffee Dep. at 61:2-7.)
Hoffee stepped forward and off the carpet with her right foot
and fell. (Id., Hoffee Dep. at 63:14-17.) She did
not notice puddled water, dirt, or mud in the area where she
fell. (Id., Hoffee Dep. at 65:16-24.) Hoffee's
clothes did not get wet from the fall, but the palms of her
hands were wet after touching the floor. (Id. Hoffee
Dep. at 65:8-11; Decl. of Karen Hoffee ("Hoffee
Decl.") ¶ 4, ECF No. 38.)
Store Manager Kim Schultz saw Hoffee fall and helped her up.
(Decl. of Kim Shultz ("Shultz Decl") ¶ 2, ECF
No. 18.) Ms. Schultz did not see water in the vicinity before
or after Hoffee fell. (Id. ¶ 3.) Ms. Schutz did
not have to complete a Walmart "spill cleanup" form
after Hoffee fell because there was no spill to cleanup.
(Id. ¶ 4.) As a result of her fall, Hoffee
sustained injuries to her left knee. (Compl. ¶ 5.)
filed this suit alleging negligence against Walmart in one or
more of the following ways: (a) failure to locate an area rug
or other slip resistant/absorbent material in the area where
Hoffee fell; (b) failure to warn customers that the area rug
was not wide enough to avoid slippery areas of the floor; (c)
failure to adequately inspect the floor to ensure it had not
become wet or slippery from rainwater; (d) failure to mop or
remove the rainwater; (e) installation of flooring that
became excessively slippery when wet; (f) failure to
adequately discover the floor became excessively slippery;
(g) failure to adequately warn customers that the floor was
excessively slippery when wet; (h) failure to install
flooring that would not present a fall hazard; (i) failure to
adequately cover the entry way flooring with a rug or other
non-slip material; (j) use of a three-and-a-half foot wide
rug when it was possible to have used a wider rug; and (k)
allowing the rug to shift position exposing a larger area of
flooring on one side. (Compl. ¶ 4.) Walmart moves for
summary judgment asserting it did not know or should not have
known about the rainwater on its floor and, therefore, is
entitled to judgment as a matter of law. (Def.'s Mot.
Summ. J. at 1-2, ECF No. 16.)
judgment is appropriate where the "movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Summary judgment is not proper if
material factual issues exist for trial. Warren v. City
of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
moving party has the burden of establishing the absence of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party
shows the absence of a genuine issue of material fact, the
nonmoving party must go beyond the pleadings and identify
facts which show a genuine issue for trial. Id. at
324. A nonmoving party cannot defeat summary judgment by
relying on the allegations in the complaint, or with
unsupported conjecture or conclusory statements.
Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107,
1112 (9th Cir. 2003). Thus, summary judgment should be
entered against "a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial." Celotex, 477
U.S. at 322.
court must view the evidence in the light most favorable to
the nonmoving party. Bell v. Cameron Meadows Land
Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable
doubt as to the existence of a genuine issue of fact should
be resolved against the moving party. Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where
different ultimate inferences may be drawn, summary judgment
is inappropriate. Sankovich v. Life Ins. Co. of North
America, 638 F.2d 136, 140 (9th Cir. 1981).
deference to the nonmoving party has limits. A party
asserting that a fact cannot be true or is genuinely disputed
must support the assertion with admissible evidence.
Fed.R.Civ.P. 56(c). The "mere existence of a scintilla
of evidence in support of the [party's] position [is]
insufficient." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 252 (1986). Therefore, where "the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial." Mats ...