Sharon Hulihan v. Circle K Stores

FILED
NOT FOR PUBLICATION DEC 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHARON HULIHAN, No. 10-16766
Plaintiff - Appellant, D.C. No. 2:09-cv-00715-JCM-
PAL
v.
CIRCLE K STORES, MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted November 9, 2011 **
San Francisco, California
Before: FARRIS, BEEZER, and LEAVY, Circuit Judges.
Sharon Hulihan appeals pro se from the district court’s grant of summary
judgment to Circle K on her negligence, Americans with Disabilities Act (ADA),
and state law anti-discrimination claims. We have jurisdiction over this matter
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pursuant to 28 U.S.C. § 1291. The facts of this case are known to the parties. We
need not repeat them here.
“We review a district court’s grant of summary judgment de novo, and may
affirm on any basis supported by the record.” Gordon v. Virtumundo, Inc., 575
F.3d 1040, 1047 (9th Cir. 2009). “We review the evidence in a light most
favorable to the non-moving party and decide whether there are any genuine issues
of material fact and whether the district court correctly applied the substantive
law.” FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009).
The district court properly granted summary judgment to Circle K on
Hulihan’s ADA claim. “Injunctive relief is the sole remedy available to private
parties under the Disabilities Act; it does not authorize a claim for money
damages.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1174 (9th
Cir. 2010). Because Hulihan concedes that the new ramp is ADA-compliant, this
claim is moot.
We believe that the district court misstated Nevada law by holding that
plaintiffs must produce medical expert testimony to prove causation in a
negligence claim. The law of Nevada is that “medical expert testimony regarding
standard of care and causation must be stated to a reasonable degree of medical
probability.” Morsicato v. Sav-On Drug Stores, Inc., 111 P.3d 1112, 1116 (Nev.
Page 2 of 4
2005). That is, when a medical expert testifies as to causation, the expert must be
able to state his or her opinion to a reasonable degree of medical probability. The
Nevada Supreme Court has never explicitly held that medical expert testimony is
mandatory in every case, see, e.g., Williams v. Eighth Judicial Dist. Court, 262
P.3d 360, 367–69 (Nev. 2011), and we will not make this assumption for them.
Indeed, past cases have not always required medical expert testimony to prove
causation. See, e.g., Jeep Corp. v. Murray, 708 P.2d 297, 300 (Nev. 1985),
superceded by statute on other grounds as stated in Countrywide Home Loans v.
Thitchener, 192 P.3d 243, 253–54 & n.39 (Nev. 2008). We shall not do so here.
Because we may affirm “on any basis supported by the record,” Gordon,
575 F.3d at 1047, however, we conclude that the district court properly granted
summary judgment to Circle K on the negligence claim. Hulihan has failed to
establish a genuine issue of material fact as to causation. See Stefanchik, 559 F.3d
at 927. None of her three doctors could testify to a reasonable degree of medical
probability that the fall at Circle K caused her alleged injuries. See Williams, 262
P.3d at 367. Hulihan’s other witnesses do not even testify to causation. She has
not presented a genuine issue to merit a full trial.
The record likewise supports the grant of summary judgment to Circle K on
Hulihan’s state law anti-discrimination claim, despite the district court again
Page 3 of 4
incorrectly imposing a medical expert requirement. Nevada law ensures equal
enjoyment to places of public accommodation without discrimination on the basis
of disability. N EV. R EV. S TAT. § 651.070. But to prevail Hulihan must prove
“actual damages.” Id. § 651.090; Long v. Coast Resorts, Inc., 267 F.3d 918, 925
(9th Cir. 2001). Alleging a denial of equal enjoyment is insufficient to prove
liability; a plaintiff must prove that the denial caused her actual injury. Because
Hulihan is unable to establish a genuine issue as to the cause of her alleged
injuries, her claim must fail.
AFFIRMED.
Page 4 of 4