John Blackburn v. Walmart Inc. ( 2020 )

FILED
NOT FOR PUBLICATION
AUG 21 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN BLACKBURN; No. 19-56064
DIANE BLACKBURN,
D.C. No. 5:18-cv-02487-DOC-SP
Plaintiffs-Appellants,
v. MEMORANDUM*
WALMART INC.; DOES, 1-10, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted August 12, 2020**
Pasadena, California
Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
Appellants John and Diane Blackburn appeal the district court’s grant of
summary judgment to Walmart on their general negligence, premises liability, and
loss of consortium claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm.
The district court did not err in granting summary judgment on all claims.
First, the Blackburns failed to demonstrate the existence of a genuine issue of
material fact as to whether a dangerous condition existed. See Olsen v. Idaho State
Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004) (describing the standard of review
for a grant of summary judgment); see also Ortega v. Kmart Corp., 26 Cal. 4th
1200, 1205 (2001) (laying out the requirements for a negligence claim under
California law). Assuming arguendo that the can that struck John Blackburn fell
from the top shelf, the Blackburns have not presented any evidence that the can
was stocked in a dangerous manner. An image taken shortly after the incident
shows a neatly stacked aisle with, at most, two cans stacked one on top of the
other. The fact that a can did strike John Blackburn does not on its own
demonstrate that the cans were stocked in a dangerous manner prior to the image
being taken.
Second, the Blackburns failed to demonstrate the existence of a genuine
issue of material fact as to whether Walmart had notice or constructive notice of
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the alleged dangerous condition. See id. at 1206. No evidence suggests that
Walmart knew of a mis-stocked can. Additionally, no evidence was presented with
regards to when the alleged dangerous condition arose. As a result, it cannot be
inferred that the subject can was improperly stocked for a period of time sufficient
to charge Walmart with constructive notice. See Perez v. Ow, 200 Cal. App. 2d
559, 563 (Ct. App. 1962).
Third, the Blackburns failed to demonstrate the existence of a genuine issue
of material fact with regards to whether Walmart’s conduct was the cause of John
Blackburn’s injury. See Ortega, 26 Cal. 4th at 1205. “A mere possibility of such
causation is not enough; and when the matter remains one of pure speculation or
conjecture, or the probabilities are at best evenly balanced, it becomes the duty of
the court to direct a verdict for the defendant.” Id. at 1205–06 (quoting Prosser &
Keeton, Torts § 41 (5th ed. 1984)). The Blackburns have not provided evidence
that the subject can was improperly stocked or that Walmart knew or should have
known that the can was improperly stocked. As a result, only speculation supports
the argument that Walmart was the cause of John Blackburn’s injury.
The district court also did not err in concluding that the doctrine of res ipsa
loquitor does not apply in this case. The Blackburns have not demonstrated that the
subject can was in the exclusive control of Walmart. See Brown v. Poway Unified
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Sch. Dist., 4 Cal. 4th 820, 825–26 (1993) (stating that for res ipsa loquitor to apply
the accident must have been caused “by an agency or instrumentality within the
exclusive control of the defendant”). Assuming arguendo that the can that struck
John Blackburn was stocked on the top shelf, the evidence does not support the
claim that the can was in Walmart’s exclusive control. Signs requesting that
patrons “ask for assistance with items on the top shelf,” do not demonstrate that
customers actually do so. Without some form of barrier or additional restriction it
seems equally likely that a customer or an employee was the last to handle the can
that struck John Blackburn. As a result, res ipsa loquitor is inapplicable.
AFFIRMED.
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