David Contreras, Sr. v. Walgreens Drug Store 3837

FILED BY CLERK
IN THE COURT OF APPEALS DEC 27 2006
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
DAVID CONTRERAS, SR., )
) 2 CA-CV 2006-0147
Plaintiff/Appellant, ) DEPARTMENT B
)
v. ) OPINION
)
WALGREENS DRUG STORE #3837, an )
Arizona corporation )
)
Defendant/Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C-20051156
Honorable Leslie Miller, Judge
AFFIRMED
Vernon E. Peltz Tucson
Attorney for Plaintiff
Campbell, Yost, Clare & Norell, P.C.
By Martin P. Clare Phoenix
Attorneys for Defendant/Appellee
B R A M M E R, Judge.
¶1 Appellant David Contreras appeals from the trial court’s grant of appellee
Walgreens Drug Store’s motion for summary judgment. Contreras filed a negligence action
to recover damages for injuries he had sustained when he fell on Walgreens’ premises,
slipping on a liquid spilled on the floor. The trial court determined Contreras had failed to
present sufficient evidence that Walgreens had had constructive notice of the dangerous
condition or that spills occurred with sufficient regularity that proof of such notice was not
required. Finding no error, we affirm.
Factual and Procedural Background
¶2 On review of a summary judgment, we “view the evidence in the light most
favorable to the party opposing the motion for summary judgment and draw all inferences
fairly arising from the evidence in that party’s favor.” Phoenix Baptist Hosp. & Med. Ctr.,
Inc. v. Aiken, 179 Ariz. 289, 293, 877 P.2d 1345, 1349 (App. 1994). In April 2003,
Contreras, an employee of a liquor distribution company, fell while making a delivery to
Walgreens’ store. He slipped on a slimy blue substance while “rolling his two wheel[led]
dolly of merchandise onto the sales floor.”
¶3 Contreras sued Walgreens in February 2005, alleging it had “failed to maintain
[its floors] in a safe condition” and “knew, or should have known, of a dangerous condition
[on] the floor . . . of the [store], and . . . allowed the dangerous condition to exist without
regard to the safety and well being of the general public and business invitees.” Walgreens
filed a motion for summary judgment, arguing that Contreras could not “establish [actual or
constructive] notice of the [hazardous] condition by Walgreens.” In his opposition to the
motion, Contreras argued he was not required to show notice because Walgreens “could
reasonably anticipate that a dangerous condition would regularly arise in the course of [its]
business operations,” relying on the “mode-of-operation” rule our supreme court described
in Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398, 733 P.2d 283 (1987).
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¶4 Store manager James McDougall testified in his deposition that the store was
open twenty-four hours a day and is “slightly above average” in size because “most of the
[other Walgreens] stores don’t have liquor departments in [th]em.” He agreed “things [that]
would end up on the floor, materials or liquids or products coming from the shelves,” would
have to be cleaned up “from time to time.” He stated that “a couple of spills [of liquids] a
week that required cleaning . . . would probably be typical,” but agreed spills were “not
something that [were] repetitive in nature or usual in nature . . . [or] something that [he]
would expect.”
¶5 The trial court granted Walgreens’ motion, determining Contreras had
“presented no evidence that Walgreens’ employees either caused or knew of the dangerous
condition” nor any evidence “as to the length of time that the spill existed.” The court also
stated that, although “[t]he [store] manager testified that some type of spill would occur in
the store about two times per week,” “[t]here is no evidence as to what type of spills occurred
or if they occurred in any particular location.” The court concluded that, “[b]ased on the lack
of specificity as to types and locations of spills and the lack of regularity with which they
occurred, [Contreras had] failed to demonstrate that the mode of operation rule applies in the
present case.” This appeal followed.
Discussion
¶6 A trial court properly grants summary judgment if there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ.
P. 56(c), 16 A.R.S., Pt. 2; Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004
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(1990). “On appeal from a summary judgment, we must determine de novo whether there
are any genuine issues of material fact and whether the trial court erred in applying the law.”
Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 8, 965 P.2d 47, 50 (App. 1998). A trial
court should only grant a motion for summary judgment “if the facts produced in support of
the claim or defense have so little probative value, given the quantum of evidence required,
that reasonable people could not agree with the conclusion advanced by the proponent of the
claim or defense.” Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008.
¶7 A business “has an affirmative duty to make and keep [its] premises reasonably
safe for customers.” Chiara, 152 Ariz. at 399, 733 P.2d at 284. In slip-and-fall cases,
however, “the mere occurrence of a fall on the business premises is insufficient to prove
negligence on the part of the proprietor.” Preuss v. Sambo’s of Ariz., Inc., 130 Ariz. 288,
289, 635 P.2d 1210, 1211 (1981). Typically, a plaintiff must prove that the dangerous
condition causing the fall was a result of the defendant’s acts or that the defendant had actual
or constructive knowledge of the condition. Id. Constructive notice is shown by proof “‘the
condition existed for such a length of time that in the exercise of ordinary care the proprietor
should have known of it and taken action to remedy it.’” Chiara, 152 Ariz. at 400, 733 P.3d
at 285, quoting Walker v. Montgomery Ward & Co., 20 Ariz. App. 255, 258, 511 P.2d 699,
702 (1973). Contreras does not argue that he presented sufficient evidence of actual or
constructive notice to avoid summary judgment.
¶8 Recognizing that “[a] person injured in a [self-service business] will rarely be
able to trace the origins of the accident,” Arizona has adopted the mode-of-operation rule.
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Id. That rule “looks to a business’s choice of a particular mode of operation and not events
surrounding the plaintiff’s accident. Under the rule, the plaintiff is not required to prove
notice if the proprietor could reasonably anticipate that hazardous conditions would regularly
arise.” 1 Id. This court has defined “regularly” as “‘[c]ustomary, usual, or normal’” for
purposes of the mode-of-operation rule. Borota v. Univ. Med. Ctr., 176 Ariz. 394, 396, 861
P.2d 679, 681 (App. 1993), quoting American Heritage Dictionary 1041 (2d coll. ed. 1982)
(alteration in Borota). Contreras argues the rule applies here, and the trial court erred by
granting Walgreens’ motion for summary judgment “when the undisputed facts indicate[]
that Walgreens is a self-service store and that spills regularly occurred two times a week at
the store.” 2
1
The mode-of-operation rule is not limited to specific types of self-service
establishments. See Chiara v. Fry’s Food Stores of Ariz., Inc., 152 Ariz. 398, 401, 733 P.2d
283, 286 (1987) (“No element of the mode-of-operation rule . . . limits its application to
produce or pizza.”).
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Walgreens argues “the trial court should not have even considered the mode of
operation rule” because Contreras did not timely “disclose[] the . . . rule as a theory of
liability” in his initial disclosure statement, in violation of Rule 26.1, Ariz. R. Civ. P., 16
A.R.S., Pt. 1. Walgreens argued below that the trial court “should reject [Contreras’s]
argument out of hand based upon his failure to identify [the mode-of-operation rule as a
theory of recovery].” The trial court instead ruled on the merits. Assuming, without
deciding, that the mode-of-operation rule is a “theory of liability” that must be disclosed and
that Contreras’s disclosure was not timely, we review the trial court’s decision to not impose
discovery sanctions for an abuse of discretion. See Jimenez v. Wal-Mart Stores, Inc., 206
Ariz. 424, ¶ 5, 79 P.3d 673, 675 (App. 2003). Walgreens makes no argument and cites no
authority suggesting the trial court abused its discretion. See Ariz. R. Civ. App. P. 13(a)(6),
17B A.R.S. Moreover, Walgreens has not described what prejudice it suffered from
Contreras’s arguably untimely disclosure. Cf. Zimmerman v. Shakman, 204 Ariz. 231, ¶ 14,
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¶9 McDougall stated that “a couple” of liquid spills occurred a week. Contreras
argues that, “[w]hen spills occur twice a week, those spills are certainly regularly occurring”
within the meaning of the mode-of-operation rule. It is insufficient, however, 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. Chiara, 152 Ariz. at 400, 733
P.3d at 285. Contreras’s evidence does not permit that inference; he provided no evidence
the liquid from spills occurring twice a week necessarily reached the floor nor that those
spills occurred in the area of the store accessible to customers. Thus, although his evidence
might permit a reasonable jury to conclude spills occur with some regularity, it does not
permit the inference such spills regularly created a hazardous condition.
¶10 In Chiara, our supreme court applied the rule to a supermarket in which a
customer slipped on creme rinse that had come from a sealed bottle. 152 Ariz. at 401, 733
P.2d at 286. There, a store clerk testified: “Let’s put it this way: I can’t say I remember it
[the creme rinse Chiara had slipped on]—cleaning up any exact one thing. There’s lots of
things I have to clean up in the store. It’s not the cleanest place.” Id. (Alteration in Chiara).
The court held “that a jury should determine if [the defendant] reasonably could have
anticipated that sealed bottles regularly were opened and spilled.” Id. Contreras argues
McDougall’s testimony is “very similar” to the clerk’s testimony in Chiara. We disagree.
McDougall testified about spills occurring in the store without suggesting whether those
62 P.3d 976, 980 (App. 2003) (trial court should consider prejudice to other party when
determining sanctions for discovery violation). Accordingly, we do not address this
argument further.
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spills were necessarily hazardous or occurred in areas accessible to customers. In contrast,
the clerk’s testimony in Chiara strongly suggested he was describing spills similar to the one
that had caused Chiara to fall, that is, hazardous spills occurring in public areas of the store,
because he prefaced his comment by saying he could not remember the details of that
particular spill. Id. McDougall’s testimony does not support a similar inference.
¶11 Division One of this court applied the rule in Bloom v. Fry’s Food Stores, Inc.,
130 Ariz. 447, 448, 452, 636 P.2d 1229, 1230, 1234 (App. 1981), to a plaintiff who had
slipped on a grape in the produce section of a grocery store. A store employee had testified
the “produce section was one of the ‘more dangerous’ aisles in the store.” Id. at 449, 636
P.2d at 1231. This testimony clearly allowed the inference the spills regularly produced a
hazardous condition to customers. Similarly, in Tom v. S. S. Kresge Co., 130 Ariz. 30, 33,
633 P.2d 439, 442 (App. 1981), this court applied the rule to a defendant that “provided soft
drinks for its patrons” so customers “could enjoy them while shopping.” And the accident
report on the plaintiff’s fall stated the “‘floor was wet from a spill . . . [probably a] soft
drink.’” Id. In Rhodes v. El Rancho Markets, 4 Ariz. App. 183, 184-85, 418 P.2d 613,
614-15 (1966), this court applied the rule to a plaintiff who had slipped on lettuce in the
produce department of a supermarket. We noted the store employees spent more time than
in other parts of the store “sweeping and picking up in the produce department because of
the nature of the ‘stuff’ that falls to the floor” and that employees “constantly picked things
up” in that area. Id. at 184, 418 P.2d at 614.
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¶12 The holdings in these cases demonstrate that application of the mode-of-
operation rule focuses not on whether a spill occurs at some interval, be it twice a week or
twice a month, but on whether spills create a condition hazardous to customers with
sufficient regularity to be considered customary, usual, or normal. See Borota, 176 Ariz. at
396, 861 P.2d at 681. The fact that spills occurred twice a week in a store open twenty-four
hours a day, without any other evidence about the location of the spills or the hazard they
present to customers, is not sufficient for a reasonable jury to conclude that a hazardous
condition resulting from those spills would regularly occur. See Chiara, 152 Ariz. at 400,
733 P.3d at 285, see also Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008. We therefore affirm
the trial court’s grant of Walgreens’ motion for summary judgment.
J. WILLIAM BRAMMER, JR., Judge
CONCURRING:
PETER J. ECKSTRSTOM, Presiding Judge
PHILIP G. ESPINOSA, Judge
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