Norton v. 99 Cents Only Stores LLC ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Amanda Norton, No. CV-21-01796-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 99 Cents Only Stores LLC, et al., 13 Defendants. 14 15 16 Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. 36). 17 For the reasons detailed below, Defendant’s Motion is granted in part and denied in part. 18 BACKGROUND 19 On February 4, 2020, Amanda Norton and her young son (“Plaintiffs”) were 20 shopping in one of 99 Cents Only Stores LLC’s (“Defendant”) Phoenix locations. (Doc. 21 37-1 at 5). At the time, Amanda was carrying her son, and was accompanied by her partner, 22 William Garrison, and her four-year-old daughter. (Id. at 13–14). While preparing to 23 leave, Plaintiff turned to pick up baby wipes and fell with her son in her arms. (Id. at 16; 24 39-1 at 3). Both Plaintiffs were injured in the fall. (Id. at 5). 25 The following facts are in dispute and are alleged by the Plaintiff. Plaintiff alleges 26 that the floor where she fell was caused by a liquid or substances that had been spilled on 27 the floor. (Id. at 5). Amanda did not see anything on the ground before she fell. (Id. at 5; 28 Doc. 39-1 at 8). After falling, Amanda alleges employees rushed to assist her and poured 1 cat litter on the substance. (Doc. 39-1 at 5–6). 2 On October 25, 2021, Defendant removed this case to federal court. (Doc. 1). 3 Plaintiffs allege three counts: Negligence (Count I), Premises Liability (Count II), and 4 Negligent Hiring, Training and/or Supervision (Count III). On December 15, 2022, 5 Defendant moved for summary judgment. (Doc. 36). 6 DISCUSSION 7 I. Legal Standard 8 The purpose of summary judgment is “to isolate and dispose of factually 9 unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary 10 judgment is appropriate if the evidence, viewed in the light most favorable to the 11 nonmoving party, shows “that there is no genuine issue as to any material fact and that the 12 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Only disputes 13 over facts that might affect the outcome of the suit will preclude the entry of summary 14 judgment, and the disputed evidence must be “such that a reasonable jury could return a 15 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 16 (1986). 17 “[A] party seeking summary judgment always bears the initial responsibility of 18 informing the district court of the basis for its motion, and identifying those portions of 19 [the record] which it believes demonstrate the absence of a genuine issue of material fact.” 20 Celotex, 477 U.S. at 323. Parties opposing summary judgment are required to “cit[e] to 21 particular parts of materials in the record” establishing a genuine dispute or “show[ ] that 22 the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 23 56(c)(1). A district court has no independent duty “to scour the record in search of a 24 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 25 II. Analysis 26 A. Premises Liability 27 Under Arizona law, premises liability resulting from the injury of an invitee requires 28 proof that (1) the dangerous condition was caused by the owner, (2) the owner had actual 1 knowledge or notice of the dangerous condition, or (3) the dangerous condition existed 2 long enough that a reasonable owner should have known about it. Walker v. Montgomery 3 Ward & Co., Inc., 20 Ariz. App. 255, 258, 511 P.2d 699, 702 (Ariz. Ct. App. 1973). 4 Viewing the evidence in the light most favorable to the Plaintiffs, Defendant’s 5 Motion of Summary Judgment as to premises liability is denied. Defendant presents 6 evidence that an hourly inspection occurred at 12:51 PM, immediately followed by 7 Plaintiffs’ fall at 12:55 PM. (Doc. 37-1 at 36, 46). Plaintiffs claim causation can be 8 inferred from Amanda’s testimony that there were no warning signs and the slippery 9 condition was not properly cleaned. (Doc. 39 at 4; Doc. 39-1 at 12). On such facts, a 10 reasonable juror could determine that the slippery condition was discovered during the 11 inspection and that the floor was either not timely remediated or was improperly cleaned 12 and left slippery at 12:51 PM with no warning provided. 13 Granting Defendant’s Motion would require this Court to supplant the jury’s duty 14 to make factual determinations. Thus, the Court denies Defendant’s Motion for Summary 15 Judgment as to premises liability. 16 B. Damages 17 Defendant also seeks summary judgment on the issue of damages based on 18 Plaintiffs’ sole disclosure under Rule 26(a)(2)(B). (Doc. 36 at 6). The Federal Rules of 19 Civil Procedure impose different disclosure requirements based on the type of witness. 20 Fed. R. Civ. P. 26(a)(1)–(2). Non-expert, fact witnesses are disclosed under Rule 26(a)(1). 21 By comparison, expert testimony is disclosed under Rule 26(a)(2) and may require an 22 additional written report. Fed. R. Civ. P. 26(a)(2)(B). “[A] treating physician is only 23 exempt from Rule 26(a)(2)(B)’s written report requirement to the extent that his opinions 24 were formed during the course of treatment.” Goodman v. Staples The Office Superstore, 25 LLC, 644 F.3d 817, 826 (9th Cir. 2011). Such treating physicians must still make 26 disclosure Rule 26(a)(2)(C). Merch. v. Corizon Health, Inc., 993 F.3d 733, 739–40 (9th 27 Cir. 2021) (“Nonetheless, disclosures of non-retained, treating physicians must include 28 ‘(i) the subject matter on which the witness is expected to present evidence under Federal 1 Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which 2 the witness is expected to testify.’”) (citing Fed. R. Civ. P. 26(a)(2)(C)). Improperly 3 disclosed expert evidence, including that under Rule 26(a)(2)(C), may be excluded unless 4 non-disclosure was “substantially justified or harmless.” Id. at 740. 5 Defendant seeks summary judgment based on Plaintiffs’ inability to prove damages 6 due to improper disclosure of Plaintiffs’ treating physicians as expert witnesses. (Doc. 36 7 at 6–7). Defendant does not argue that physician’s treating records have been provided in 8 discovery; nor could Defendant assert that treating physicians cannot testify within certain 9 parameters as to their treatment. Yet, the Defendant has not provided this Court with 10 sufficient facts to determine that the disclosed records of Plaintiff’s treating physicians are 11 insufficient to establish any of Plaintiff’s damages, or that the failure to disclose was not 12 substantially justified or harmless. As such, this Court denies Defendant’s Motion for 13 Summary Judgment on this basis. 14 C. Negligent Hiring 15 Finally, Defendant seeks summary judgment on Plaintiffs’ negligent hiring and 16 training charge. “For an employer to be held liable for negligent supervision under Arizona 17 law, a plaintiff must demonstrate (1) that the employer knew or should have known that 18 the employee was not competent to perform the assigned task and (2) that the employer’s 19 failure to supervise the employee caused the plaintiff’s injury.” Charley v. United 20 States, 437 F. Supp. 3d 745, 750 (D. Ariz. 2020) (quoting Sloan v. United States, 21 No. CV-16-08059-PCT-DGC, 2016 WL 3548766, at *2 (D. Ariz. June 30, 2016)). 22 Plaintiffs’ evidence for negligent hiring is effectively the fact that the injury 23 occurred in the first place. (Doc. 38 at 10–11). Plaintiffs do not even name the specific 24 employees on whose negligent performance their claim must be based. (Doc. 37-1 at 8–9; 25 Doc. 38 at 10–11). Plausible allegations alone are sufficient to survive a motion to dismiss, 26 Charley, 437 F. Supp. 3d at 750–51, they are not sufficient to avoid summary judgment. 27 Accordingly, Defendant’s Motion for Summary Judgment is granted as to Plaintiffs’ 28 negligent hiring claim. 1 CONCLUSION 2 Accordingly, 3 IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment (Doc. 36) is GRANTED in part and DENIED in part. It is granted as to 5 || Count II. The Motion is denied on all other grounds. 6 Dated this 8th day of December, 2023. Wars ) A Whacrsay Sooo) 9 Chief United states District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5-