Shafer v. Walgreen ( 2018 )


Menu:
  •                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    KATHLEEN SHAFER, Plaintiff/Appellant,
    v.
    WALGREEN ARIZONA DRUG COMPANY, an Arizona corporation,
    Defendant/Appellee.
    No. 1 CA-CV 17-0243
    FILED 6-5-2018
    Appeal from the Superior Court in Maricopa County
    No. CV2014-002127
    The Honorable Christopher T. Whitten, Judge
    AFFIRMED
    COUNSEL
    Law Office of Donald Smith PLLC, Glendale
    By Donald H. Smith
    Counsel for Plaintiff/Appellant
    Jones, Skelton & Hochuli PLC, Phoenix
    By Douglas R. Cullins, Jennifer B. Anderson, Kenneth L. Moskow
    Counsel for Defendant/Appellee
    SHAFER v. WALGREEN
    Decision of the Court
    MEMORANDUM DECISION
    Judge Jennifer M. Perkins delivered the decision of the Court, in which
    Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
    P E R K I N S, Judge:
    ¶1           Kathleen Shafer challenges the trial court’s entry of summary
    judgment in favor of Walgreen Arizona Drug Company (“Walgreen”) on
    her premises liability claim for negligence. For the following reasons, we
    affirm.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2              While shopping at a Walgreen store, Shafer picked up a glass
    air freshener refill from a shelf and the product fell out from the bottom of
    the package. The glass container dropped onto Shafer’s foot, lacerating her
    left big toe. Shafer had not noticed anything wrong with the package before
    she picked it up. Shafer suffered damages as a result of her injury.
    ¶3         Shafer sued Walgreen, alleging negligence. The trial court
    granted Walgreen’s motion for summary judgment. Shafer timely
    appealed.
    DISCUSSION
    ¶4            We review a grant of summary judgment de novo to determine
    whether any issue of material fact exists and whether the trial court
    correctly applied the law. Cannon v. Hirsch Law Office, P.C., 
    222 Ariz. 171
    ,
    174, ¶ 7 (App. 2009). Summary judgment is appropriate when there is no
    genuine issue of material fact and the moving party is entitled to judgment
    as a matter of law. Ariz. R. Civ. P. 56(a). In our review of summary
    judgment, we view evidence and reasonable inferences in the light most
    favorable to the non-moving party. Wells Fargo Bank v. Ariz. Laborers Local
    No. 395 Pension Trust Fund, 
    201 Ariz. 474
    , 482, ¶ 13 (2002).
    ¶5            Shafer argues the trial court erred in granting summary
    judgment on her theories of mode of operation and res ipsa loquitur. She also
    argues the court erred in denying her request for a spoliation instruction.
    For the following reasons, we affirm the trial court’s judgment.
    2
    SHAFER v. WALGREEN
    Decision of the Court
    I.     The Mode of Operation Rule Is Inapplicable.
    ¶6              “A business proprietor has an affirmative duty to make and
    keep [its] premises reasonably safe for customers. However, a proprietor
    who is not directly responsible for a dangerous condition is not liable
    simply because an accident occurred on [its] property.” Chiara v. Fry’s Food
    Stores of Ariz., Inc., 
    152 Ariz. 398
    , 399 (1987) (citation omitted).
    ¶7              A plaintiff suing a place of business for negligence
    traditionally must show the proprietor failed to act reasonably after having
    notice of a dangerous condition. 
    Id. at 400
    . Under the mode of operation
    rule, however, “the plaintiff is not required to prove notice if the proprietor
    could reasonably anticipate that hazardous conditions would regularly
    arise.” 
    Id.
     Under this theory, liability may attach if there is a “likelihood that
    certain hazardous conditions will recur as a result of the particular method
    of doing business.” Bloom v. Fry’s Food Stores, Inc., 
    130 Ariz. 447
    , 451 (App.
    1981); see also Contreras v. Walgreens Drug Store No. 3837, 
    214 Ariz. 137
    , 139,
    ¶ 9 (App. 2006) (“It is insufficient . . . to demonstrate that spills of some kind
    regularly occur; the business must be able to reasonably anticipate that a
    condition hazardous to customers will regularly occur.”). Thus, Shafer did
    not have to prove that Walgreen had notice of the particular hazard that
    injured her if she could show Walgreen could reasonably anticipate that
    hazardous conditions would regularly arise from its method of doing
    business.
    ¶8              In Chiara, the Arizona Supreme Court examined the mode of
    operation rule in the context of hazards caused by the customers of a
    business, and determined that the rule “is of limited application because
    nearly every business enterprise produces some risk of customer
    interference.” Chiara, 
    152 Ariz. at
    400–01. The Chiara court noted that if the
    mode of operation rule applied “whenever customer interference was
    conceivable, the rule would engulf the remainder of negligence law” and
    “[a] plaintiff could get to the jury in most cases simply by presenting proof
    that a store’s customer could have conceivably produced the hazardous
    condition.” 
    Id. at 401
    . Thus, the rule applies only “when a business can
    reasonably anticipate that hazardous conditions will regularly arise.” 
    Id. at 401
    .
    ¶9           Shafer argues she offered evidence that Walgreen employees
    knew customers opened products and put them back on the shelves,
    thereby creating a hazardous condition for other customers, including
    Shafer.
    3
    SHAFER v. WALGREEN
    Decision of the Court
    ¶10           In Contreras, the plaintiff slipped on liquid on the floor of a
    store, and the store manager testified that liquid spills occurred “a couple”
    of times per week. Contreras, 214 Ariz. at 139, ¶9. The Contreras court held
    that the evidence presented was insufficient to demonstrate spills regularly
    occurred in a manner that enabled the business to “reasonably anticipate
    that a condition hazardous to customers will regularly occur.” Id. at 139–
    40, ¶9, ¶12.
    ¶11             Here, as Shafer asserts, Walgreen employees testified that
    customers regularly opened products and put them back on the shelves.
    However, as in Contreras, the record lacks evidence that Walgreen could
    reasonably anticipate that a hazardous condition would regularly occur as
    a result. Id. at 139, ¶9. In fact, Walgreen employees testified that other than
    Shafer’s injury, the only other known injuries in the store occurred during
    two unrelated events, one when a customer tripped over a rug coming
    through the front door and another when a child had a seizure. The mere
    fact that customers open products and put them back on the shelves is not
    sufficient for a reasonable jury to conclude that a hazardous condition
    would regularly occur. Id. at 140, ¶12. Thus, the trial court correctly
    determined that the mode of operation theory is inapplicable.
    II.    Res Ipsa Loquitur Does Not Apply.
    ¶12            Shafer contends res ipsa loquitur applies and defeats summary
    judgment. As an initial matter, Shafer argues that the trial court’s failure to
    specifically address her res ipsa loquitur argument in its ruling requires this
    Court to remand the matter. We disagree. We will affirm entry of summary
    judgment if correct for any reason supported by the record, “even if not
    explicitly considered by the superior court.” KB Home Tucson, Inc. v. Charter
    Oak Fire Ins., 
    236 Ariz. 326
    , 329, ¶ 14 (App. 2014) (citation omitted).
    ¶13             Res ipsa loquitur allows the trier of fact to infer negligence if an
    accident occurs that does not normally occur when due care is exercised.
    Brookover v. Roberts Enterprises, Inc., 
    215 Ariz. 52
    , 57, ¶ 19 (App. 2007). The
    doctrine requires a plaintiff to demonstrate (1) the accident is of a kind that
    ordinarily does not occur in the absence of negligence, (2) the accident was
    caused by an agency or instrumentality subject to the control of the
    defendant, and (3) the plaintiff is not in a position to show the
    circumstances that caused the agency or instrumentality to operate to its
    injury. 
    Id.
     at 57–58, ¶ 19. The trial court may grant summary judgment to
    the defendant if any one of these three elements is not present. Ward v.
    Mount Calvary Lutheran Church, 
    178 Ariz. 350
    , 354 (App. 1994).
    4
    SHAFER v. WALGREEN
    Decision of the Court
    ¶14            We focus on the first element, under which the plaintiff must
    show through common knowledge or expert testimony that the
    probabilities weigh heavily in favor of negligence causing the incident.
    Brookover, 215 Ariz. at 58, ¶ 20; see also Capps v. Am. Airlines, Inc., 
    81 Ariz. 232
    , 234 (1956) (“The doctrine applies only where the physical cause of the
    injury and the attendant circumstances indicate such an unusual occurrence
    that in their very nature they carry a strong inherent probability of
    negligence . . . .”). Shafer argues that because Walgreen checked the entire
    store for damaged products only in the evening, it was highly probable
    Walgreen’s negligence caused her injury. But there was no evidence that
    the purpose of Walgreen’s nightly inspections was to prevent injuries like
    the one that occurred here, or that opened packages through which heavy
    items could fall was a known danger that could have been averted through
    more frequent inspections. Further, there was no evidence that opened
    packages generally result in injury to customers, or that a store owner acts
    negligently by not inspecting packages more frequently. Res ipsa loquitur
    therefore does not apply. See Faris v. Doctors Hosp., Inc., 
    18 Ariz. App. 264
    ,
    270 (1972) (res ipsa loquitur does not apply “where there is no evidence that
    a negligent act of the appellees is more likely to cause the injury than any
    other possible cause”). We thus conclude that the trial court properly
    granted summary judgment to Walgreen.
    III.   The Issue of a Spoliation Instruction is Not Relevant at Summary
    Judgment.
    ¶15            Shafer argues the trial court erred in declining to give a
    spoliation instruction as a result of Walgreen’s failure to produce the air
    freshener packaging. Shafer fails to cite any legal authority and includes
    only a single citation to the record in support of her spoliation arguments,
    in clear violation of Arizona Rule of Civil Appellate Procedure (“ARCAP”)
    13(a)(7). Failure to include references to the record and citation to legal
    authority is, as a general matter, insufficient to preserve an issue on appeal.
    Flood Control Dist. Of Maricopa Cty. v. Conlin, 
    148 Ariz. 66
    , 68 (App. 1985);
    Joel Erik Thompson, Ltd. v. Holder, 
    192 Ariz. 348
    , 351, ¶ 20 (App. 1998). As
    such, Shafer has not properly preserved her spoliation claim.
    ¶16           Even assuming Shafer properly preserved this claim, it is
    unclear how Shafer’s argument is relevant in the context of summary
    judgment. She does not argue that alleged spoliation alters the parties’
    summary judgment burdens. In any event, the issue of spoliation of
    evidence does not go to whether Walgreen was aware that a dangerous
    condition regularly occurred. Accordingly, Walgreen’s failure to produce
    the air freshener packaging does not provide a basis for relief.
    5
    SHAFER v. WALGREEN
    Decision of the Court
    CONCLUSION
    ¶17            We affirm summary judgment and award Walgreen its
    taxable costs incurred on appeal upon compliance with ARCAP 21.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    6