Simon v. Safeway, Inc.

• Decision Date: 20 December 2007
• Docket Number: No. 2 CA-CV 2007-0055.,2 CA-CV 2007-0055.
• Citation: 173 P.3d 1031,217 Ariz. 330
• Parties: Steven H. SIMON, Plaintiff/Appellant, v. SAFEWAY, INC., Defendant/Appellee.
• Court: Arizona Court of Appeals

173 P.3d 1031

217 Ariz. 330

Steven H. SIMON, Plaintiff/Appellant, v. SAFEWAY, INC., Defendant/Appellee.

No. 2 CA-CV 2007-0055.

Court of Appeals of Arizona, Division 2, Department B.

December 20, 2007.

Steven H. Simon, Tucson, In Propria Persona.

Quarles & Brady LLP By Timothy M. Medcoff and Deanna R. Rader, Tucson, Attorneys for Defendant/Appellee.

OPINION

VÁSQUEZ, Judge.

¶ 1 In this personal injury action, appellant Steven Simon alleges he was injured at a Safeway grocery store during an altercation with a security guard. The guard was employed by Sonoran Desert Investigations, Inc. ("SDI"), which in turn had contracted with appellee Safeway Stores, Inc. to provide loss prevention and security services ("security services") at its stores. Simon appeals from the trial court's grant of summary judgment in favor of Safeway and the denial of his motion for new trial on the issue of Safeway's vicarious liability for the alleged intentional torts of the security guard. He also challenges the court's denial of his motion to continue its summary judgment ruling to allow additional discovery pursuant to Rule 56(f), Ariz. R. Civ. P. We reverse and remand.

Facts and Procedural Background

¶ 2 We view the facts in the light most favorable to the party against whom summary judgment was granted. Wolfinger v. Cheche, 206 Ariz. 504, ¶ 4, 80 P.3d 783, 785 (App.2003). On July 30, 2003, Simon entered a Safeway store to shop. At one point he removed two cans of cat food from a shelf but then put them back. After purchasing other items, he left the store. Outside, Simon was approached by security guard and SDI employee Jose Howard. Howard accused Simon of shoplifting and lifted Simon's shirt, apparently to see if he had any items concealed underneath. Although Howard discovered no stolen items, he nevertheless told Simon not to return to the store. When Simon asked to speak with a manager, Howard escorted him to a back room in the store.¹ There, the two engaged in a verbal and physical altercation during which Simon was allegedly thrown to the floor and injured.

¶ 3 Simon filed this lawsuit against Safeway, claiming that he had been physically and sexually assaulted by Howard and that Safeway was vicariously liable because it had a nondelegable duty to "employ properly licensed and trained security guards." Simon also alleged Safeway was directly liable because it had negligently failed to train and supervise Howard. Safeway filed a motion for summary judgment, which the trial court originally denied. In response to Safeway's motion for reconsideration, Simon moved the court to defer its ruling so he could conduct additional discovery. The court granted Safeway's motion for reconsideration, granted summary judgment in favor of Safeway, and denied Simon's motion to continue. Simon then filed a motion for new trial, pursuant to Rule 52(a)(8), Ariz. R. Civ. P., which the court also denied. Simon appeals the trial court's grant of summary judgment and its denial of his motion for new trial and Rule 56(f) motion for additional discovery. We have jurisdiction pursuant to A.R.S. § 12-2101(B), (F).

Discussion

I. Rule 56(f) motion

¶ 4 We first address Simon's contention that the trial court erred in denying his motion to continue its ruling on Safeway's motion for reconsideration of its denial of summary judgment. Although not designated as a motion pursuant to Rule 56(f), Ariz. R. Civ. P., we treat Simon's motion as such because the trial court apparently did so. In denying Simon's request for a continuance, the court concluded his motion "fail[ed] to offer anything which would be admissible evidence and which would offset" the evidence Safeway presented in support of its motion for summary judgment. We review a trial court's ruling on a Rule 56(f) motion for an abuse of discretion. Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668, 676 (App.1993).

¶ 5 Simon argued in his motion that further discovery was necessary to determine the precise nature of the relationship between Safeway and Howard, and he requested additional time to depose three witnesses—Howard, Jesse Blanco, the Safeway store manager, and Jade Herman, the store employee who allegedly first told Howard that Simon might be shoplifting. On appeal, Safeway argues we should affirm the trial court's ruling because the discovery requests would have produced no material facts to defeat summary judgment and Simon's motion did not contain a sworn affidavit, in accordance with Rule 56(f). However, Safeway did not raise the latter objection below, and any technical deficiency in the form of the motion would have been easily remedied had Safeway done so. See Republic Nat. Bank. of New York v. Pima County, 200 Ariz. 199, ¶ 23, 25 P.3d 1, 7 (App.2001) (appellate court hesitant to affirm motion to dismiss on technical grounds not raised in motion and where insufficiency curable if timely raised below); Rhoads v. Harvey Publ'ns, Inc., 131 Ariz. 267, 269, 640 P.2d 198, 200 (App.1981) (appellate court will only affirm summary judgment on grounds not raised below in limited circumstances). Furthermore, as we have noted, the trial court made its ruling on the merits. We therefore address Simon's motion on the merits.

¶ 6 Rule 56(f) provides, in pertinent part:

Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may . . . order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

A Rule 56(f) motion "requires a party to submit a sworn statement specifically describing the reasons justifying delay," which includes the evidence outside the party's control, its location, what the party believes the evidence will show, the discovery method the party wishes to use, and an estimate of the time required to complete the discovery. Grand v. Nacchio, 214 Ariz. 9, ¶ 72, 147 P.3d 763, 783 (App.2006). However, "[t]he `major objective' of Rule 56(f) is `to insure that a diligent party is given a reasonable opportunity to prepare his case.'" Hunter Contracting Co., Inc. v. Superior Court, 190 Ariz. 318, 322, 947 P.2d 892, 896 (App.1997), quoting 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2741 (2d ed.1983).

¶ 7 Here, Simon requested more time to investigate the nature of Safeway's and Howard's employment relationship because he had not yet had a meaningful opportunity to do so. In his motion, he indicated he was seeking information concerning the nature of the employment relationship between Howard and Safeway, stated that he believed Howard, Blanco, and Herman each had information relevant to the employment relationship because they were "people who were involved in the day to day operation of the Safeway store . . . and who were witnesses to the . . . relationship of Safeway and Jose Howard."² There was no suggestion that Simon had not been diligent in attempting to obtain this evidence, and the record indicates that he timely filed the motion to continue after Safeway asked the trial court to reconsider its ruling denying summary judgment. Instead, the court's ruling on the motion to continue was predicated on what it deemed Simon's failure to produce any admissible evidence which could defeat the evidence Safeway had already produced.

¶ 8 But, this is the precise purpose of Rule 56(f) motions, which expressly permit a trial court to delay ruling on a motion for summary judgment if the party opposing summary judgment states that it cannot, at that time, provide facts to justify its position and informs the court of what information it is looking for, where it thinks the information is, and how it plans on obtaining that information. See Bobo v. John W. Lattimore, Contractor, 12 Ariz.App. 137, 141, 468 P.2d 404, 408 (1970). Furthermore, there was already evidence in the record which tended to support Simon's claim that a master-servant relationship existed so that Safeway could be liable under the theory of respondeat superior. Robert Folkes, Security Director for the Phoenix Division of Safeway, specifically averred in an affidavit that Safeway did not control or actively participate in how SDI employees performed their jobs. However, the contract between Safeway and SDI required SDI's employees to abide by Safeway's "policies and practices" when "[r]espond[ing] to any unusual situation and provid[ing] assistance and/or safety measures appropriate to such situation." Safeway's shoplifting policy also provides specific directives about how suspected incidents of shoplifting should be handled. This policy provides, in part:

1. The person suspected of shoplifting should be seen concealing one or more items of Safeway merchandise.

2. The suspect should be kept under constant observation. Unless this is done, the person is not to be detained or questioned.

3. Normally, the suspect should not be stopped until he or she actually passes the point of sales and it is obvious they are exiting the store. Observation of the suspect should be maintained while he or she is at the checkstand so that you are reasonably certain that he or she does not pay for the merchandise.

. . . .

6. If physical resistance is met, let the person go. UNDER NO CIRCUMSTANCES IS ANY EMPLOYEE TO CHASE A SHOPLIFTER. Force is not to be used to detain a shoplifting suspect except as necessary and only to the extent necessary, for legitimate purposes of self-defense.

7. If there is reason to believe the detained or apprehended suspect may have a concealed weapon, a "pat" search for weapons should be conducted.

. . . .

9. No detention or apprehension should be based solely upon information from a customer. A detention or apprehension may be based on information from an unauthorized store employee. This will only be permitted...