Zumbusch v. Wal-Mart Stores, Inc.

Decision Date17 April 2013
Docket NumberNo. 3:12–cv–837–ST.,3:12–cv–837–ST.
Citation940 F.Supp.2d 1308
PartiesTheresa ZUMBUSCH, Plaintiff, v. WAL–MART STORES, INC., a Delaware Corp., Defendant.
CourtU.S. District Court — District of Oregon

OPINION TEXT STARTS HERE

Garry L. Kahn, Kahn & Kahn, P.C., Portland, OR, for Plaintiff.

Jay Richard Chock, John R. Barhoum, Chock Barhoum LLP, Portland, OR, for Defendant.

OPINION AND ORDER

STEWART, United States Magistrate Judge:

INTRODUCTION

Plaintiff, Theresa Zumbusch (Zumbusch), filed a Complaint in the Circuit Court of the State of Oregon for the County of Multnomah alleging one claim for negligence against defendant, Wal–Mart Stores, Inc. (Wal–Mart), arising from injuries that she suffered on July 28, 2010, when she slipped and fell. 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). Zumbusch then filed a First Amended Complaint alleging the same claim for negligence (docket # 8).

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) (docket # 13).

Pursuant to FRCP 56(c), Wal–Mart has filed a Motion for Summary Judgment (docket # 15). For the reasons set forth below, that motion is DENIED.

STANDARDS

FRCP 56(c) authorizes summary judgment if “no genuine issue” exists regarding any material fact and “the moving party is entitled to judgment as a matter of law.” The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548, 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, 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.), cert. denied,493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989) (emphasis in original) (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 nonmoving party.” Farrakhan v. Gregoire, 590 F.3d 989, 1014 (9th Cir.2010), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

As both parties agree, Oregon law applies to this case based on diversity jurisdiction. See, e.g., Alaska Rent–A–Car, Inc. v. Avis Budget Group, Inc., 709 F.3d 872, 886 (9th Cir.2013).

UNDISPUTED FACTS

In July 2010, Zumbusch was employed by Mosaic as a “merchandiser.” Zumbusch Depo.,1 pp. 38–40. Her job was to go into retail stores and conduct product audits for various companies. Id. She paid a weekly visit to the Wal–Mart store in Portland to “monitor” the store's display of Hewlett–Packard products. Id., pp. 39–40. That audit included checking on the products on display, including printers and laptops, and determining whether ink supplies were in stock and were in old or new boxes. Id., p. 40. Zumbusch had been in the Wal–Mart store [h]undreds of times” doing audits. Id., p. 44. When she finished auditing a display, she checked in with the manager of the electronics department who would sign her report. Id.

From time to time, Zumbusch also shopped while still in the store. Zumbusch Aff., (docket # 24) ¶ 4. She usually shopped after finishing her audit, but sometimes before starting, she would grab a protein bar or something to drink, depending on the time of day. Id.

On Wednesday, July 28, 2010, at about 2:40 pm, Zumbusch entered the Wal–Mart store to perform a merchandise audit of Hewlett–Packard products. Zumbusch Depo., pp. 107–08, 127. She intended to observe the Hewlett–Packard display to determine what products needed to be updated or restocked. Id., pp. 38–39. However, shortly after entering the store, she slipped and fell. Id., p. 109.

While sitting on the floor, she saw, in “an area about 3 or 4 inches wide and 12 to 18 inches long,” a “series of small puddles. Some were elongated, some were circular, some were the size of a quarter, some larger, some smaller.” Zumbusch Aff., ¶ 1; see also Zumbusch Depo., pp. 117, 121–22. “Each small puddle appeared to be encircled by sandy dirt that had dried around the edges of each puddle.” Zumbusch Aff., ¶ 2; see also Zumbusch Depo., pp. 122–23, 126. The liquid appeared to be “clear water.” Zumbusch Aff., ¶ 2. Because the rest of the floor was clean, “it appeared as though something on wheels had been pushed through it and, perhaps the dirt on wheels had tracked and spread the liquid away from the original spill.” Id. However, she did not see any cart tracks. Zumbusch Depo., p. 126. Photographs were taken of the spill about 15–20 minutes after Zumbusch fell, but can no longer be located. Zumbusch Depo., pp. 111, 114; Cox Depo., pp. 22–24.

Other customers were in the store that day. Zumbusch Depo., p. 127. She did not see the liquid on the floor before she fell and does not know how it got there. Id., p. 110.

Wal–Mart's policy is for all employees to take responsibility for cleaning up spills. Burley Depo., pp. 15–17; Kahn Decl., Exs. 9, 13–20. It was customary for a maintenance worker to do a safety sweep with a 36? broom mop two or three times a day, which he currently does either at 11:00 am or 1:00 pm or both. Id., pp. 21–25. The “front-end” supervisor at the time, Tiffany Rainy, walked through that area maybe 20 times on an average day. Rainy Depo., pp. 5–6. It is the store's policy to regularly check the aisles for safety every hour. Id, p. 19.

DISCUSSION

Wal–Mart makes two arguments in support of summary judgment. First, it argues that at the time of her injury, Zumbusch was a licensee, not an invitee, and that Wal–Mart did not breach its duty of care to a licensee. Second, even if Zumbusch was an invitee, Wal–Mart argues that she has submitted no evidence that Wal–Mart breached its duty of care to an invitee. After a careful review of the record and consideration of the arguments at the hearing, this court concludes that the evidence does not permit the inference that Zumbusch was a licensee, and instead permits only the conclusion that she was a business visitor invitee. This court further concludes that Zumbusch's testimony is sufficient to create a material issue of fact concerning the length of time the substance in which Zumbusch slipped had been on the floor, precluding summary judgment in favor of Wal–Mart.

I. Licensee v. Invitee

Whether Zumbusch was a licensee or invitee is relevant to the standard of care applicable to Wal–Mart. Johnson v. Short, 213 Or.App. 255, 260, 160 P.3d 1004, 1008 (2007) (the duty of care that a landowner owes to a visitor entering its property depends on the visitor's status).

A “licensee” is a visitor “who comes upon the premises for her own purposes with the consent of the possessor.” Rich v. Tite–Knot Pine Mill, 245 Or. 185, 191, 421 P.2d 370, 373 (1966) (citation omitted). Rather than extending an “invitation” to the visitor, the landowner merely gives “permission” for the visitor's presence. Cassidy v. Bonham, 196 Or.App. 481, 486, 102 P.3d 748, 751 (2004). The possessor owes a duty to a licensee only “to put his premises in a safe condition” and has no duty “to disclose to the licensee any concealed, dangerous conditions of the premises of which he has knowledge. Id. (citations omitted).

In contrast, an “invitee” is a visitor “who comes upon the premises for business which concerns the occupier, with the occupier's invitation, expressed or implied.” Rich, 245 Or. at 191–92, 421 P.2d at 374. The occupier owes greater duties to the invitee “to warn of latent dangers” and also “to protect an invitee against those dangers in the condition of the premises of which he knows or should have known by the exercise of reasonable care.” Id. at 192, 421 P.2d at 374 (citation omitted).

Oregon has adopted the following two tests for determining whether a person is an invitee:

Under the first, the “economic advantage” test, anyone who comes on the premises for business that concerns the occupier, with the occupier's express or implied invitation, is an invitee. Under the second, the “invitation” test, a person is an invitee when the occupier, expressly or impliedly, leads the person to believe that it intended visitors to use the premises for the purpose that the person is pursuing and that the use was in accordance with the intention or design for which the premises were adapted or prepared.

Walsh v. C & K Market, Inc., 171 Or.App. 536, 539, 16 P.3d 1179, 1181 (2000) (citations omitted)

In this regard, Oregon refers to the Restatement (Second) of Torts, § 332 (1974), which uses “somewhat different terms.” Id. at 539, 16 P.3d at 1181. That section provides as follows:

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purposes directly or indirectly connected with business dealing with the possessor of the land.

“A person whom section 1132 calls a ‘public invitee’ is, under the Oregon cases, an invitee under the invitation test, while a person whom section 1132 calls a ‘business visitor’ is an invitee under the economic advantage test.” Id. at 540, 16 P.3d at 1182. A customer, who enters the store either to buy or browse provides the...

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3 cases
  • Laygui v. Wal-Mart Stores, Inc.
    • United States
    • U.S. District Court — District of Oregon
    • July 24, 2014
    ...his fall, to show that the substance had been on the floor for a substantial period of time. See, e.g., Zumbusch v. Wal-Mart Stores, Inc., 940 F.Supp.2d 1308, 1314-16 (D.Or. 2013) (citing Audas v. Montgomery Ward, Inc., 79 Or.App. 718, 720, 719 P.2d 1334 (1986); Munro v. Richard's Food Ctr.......
  • Fowler v. Wal-Mart Stores, Inc.
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    • March 9, 2017
    ...that the business owner, in the exercise of reasonable diligence, should have discovered and removed it. Zumbusch v. Wal–Mart Stores, Inc. , 940 F.Supp.2d 1308, 1314 (D. Or. 2013) (citing Van Den Bron v. Fred Meyer, Inc. , 86 Or.App. 329, 331, 738 P.2d 1011, 1012 (1987) ); Adams v. Valley H......
  • Brown v. Sam's W. Inc.
    • United States
    • U.S. District Court — District of Nevada
    • January 26, 2018
    ...that the business owner, in the exercise of reasonable diligence, should have discovered and removed it. Zumbusch v. Wal-Mart Stores, Inc., 940 F. Supp. 2d 1308, 1314 (D. Or. 2013) (citing Van Den Bron v. Fred Meyer, Inc., 738 P.2d 1011, 1012 (Or. App. 1987)); Adams v. Valley Hope Ass'n, 20......

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