Kenette Paredes v. USA ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENETTE A. PAREDES, No. 22-15459
Plaintiff-Appellant, D.C. No. 1:19-cv-00161-WRP
and
MEMORANDUM *
EDGARD PAREDES, Sr.,
Plaintiff,
v.
UNITED STATES OF AMERICA, dba
Department of the Navy, The Navy
Exchange Mall at Pearl Harbor,
Defendant-Appellee,
and
JOHN DOES, 1-10; et al.,
Defendant.
Appeal from the United States District Court
for the District of Hawaii
Wes R. Porter, Magistrate Judge, Presiding
Submitted June 9, 2023**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Honolulu, Hawaii
Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.
This case, brought under the Federal Tort Claims Act, 28 U.S.C. § 1346,
arises from a slip and fall accident on a recently mopped floor in the food court of
the Navy Exchange at Pearl Harbor. Following a four-day bench trial, the district
court found that Plaintiff Kenette Paredes failed to establish Defendant United
States’ negligence, and that Paredes’s contributory negligence was greater than any
negligence by the government and thus barred her recovery. On appeal, Paredes
challenges the district court’s factual findings and its legal conclusion that state
and federal workplace regulations, while relevant, are not dispositive in
determining whether the government was negligent.
We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s
factual findings for clear error and reverse only if “on the entire evidence” we are
“left with the definite and firm conviction that a mistake has been committed.”
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (internal quotation marks
and citation omitted). “Where there are two permissible views of the evidence, the
fact finder’s choice between them cannot be clearly erroneous.” Id. at 574. We
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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review the district court’s legal conclusions regarding the standard of care de novo.
See Miller v. United States, 587 F.2d 991, 994−95 (9th Cir. 1978). We affirm.
1. The district court did not clearly err in its negligence determination
because there is an adequate basis in the record for each of its factual findings.
First, the district court’s determination as to the size of the mopped area was
supported by the evidence, there is no indication the district court failed to consider
relevant evidence, including the “length axis” of the mopped area, and the court’s
credibility findings were proper. Reversal is not warranted merely because
Paredes disagrees with the district court’s conclusion that the mopped area was
“relatively small.” See Anderson, 470 U.S. at 574. The district court’s
determination regarding the cone’s location was also supported by the evidence.
Second, Paredes’s contention that the district court failed to consider all
relevant evidence is not supported by the record. The court explained its
reasoning, which was supported by the record, and stated that it reviewed all the
testimony and exhibits presented, which included discussions about additional
warning measures.
Third, the court’s finding that Paredes was not credible is supported by
significant inconsistencies in Paredes’s testimony. Given these inconsistencies, the
deferential review of the district court’s credibility determinations, and Navy Loss
Prevention/Safety Investigator Jessica Cardenas’s consistent testimony, which was
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credited by the district court, the district court’s finding was not clearly erroneous.
See id. at 575.
Fourth, the district court properly considered testimony from the
government’s experts, and Paredes’s argument on appeal based on a purported
logical contradiction in the testimony is unpersuasive. Thus, Paredes has not
demonstrated that the district court clearly erred in making any of these challenged
factual findings.
2. Paredes argues that the violation of state and federal workplace
regulations should have been used as evidence of negligence and that, because
there is no dispute that the government failed to comply with such regulations, the
government was negligent per se. The district court correctly held that state and
federal workplace regulations are relevant, but not dispositive, in determining
whether the government was negligent under Hawaii law. 1 See, e.g., Michel v.
Valdastri, Ltd., 575 P.2d 1299, 1301 (Haw. 1978); Pickering v. State, 557 P.2d
125, 127 (Haw. 1976); see also Robertson v. Burlington Northern R. Co., 32 F.3d
408, 410−11 (9th Cir. 1994). The district court therefore did not err by considering
applicable state and federal workplace regulations but ultimately concluding that,
1
Because the alleged tort occurred in Hawaii, that state’s law governed this
action. See Pacheco v. United States, 21 F.4th 1183, 1187 (9th Cir. 2022).
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“in relation to all other evidence,” Paredes was adequately warned of the potential
risk.
3. The district court’s conclusion that Paredes’s contributory negligence
was greater than any negligence by the government was not clearly erroneous for
the same reasons supporting its finding on the government’s negligence.
AFFIRMED.
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