Elizabeth Teodoro v. Smith's Food & Drug Stores ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH TEODORO, No. 20-15629
Plaintiff-Appellant, D.C. No.
2:19-cv-00401-JAD-EJY
v.
SMITH'S FOOD & DRUG STORES, INC., MEMORANDUM*
DBA Smith's Food & Drugs #311,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted June 9, 2021**
Portland, Oregon
Before: WARDLAW, TALLMAN, and HURWITZ, Circuit Judges.
Elizabeth Teodoro (Teodoro) appeals the district court’s grant of summary
judgment on her slip-and-fall claim under Nevada law. We have jurisdiction, 28
U.S.C. § 1291, and review that grant of summary judgment de novo, Braunling v.
*
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).
Countrywide Home Loans, Inc., 220 F.3d 1154, 1156 (9th Cir. 2000). We reverse
and remand.
Teodoro offered no evidence before the district court suggesting that Smith
Food & Drug Stores, Inc. (Smith) or its agents caused the liquid she slipped on to
wind up on the floor. Therefore, “liability will lie only if the business had actual
or constructive notice of the condition and failed to remedy it.” Sprague v. Lucky
Stores, Inc., 849 P.2d 320, 323 (Nev. 1993) (per curiam). Because Teodoro has
never argued that Smith had actual notice of that liquid, she had to raise a dispute
of material fact as to whether Smith “had constructive notice of the hazardous
condition” in order to survive summary judgment. Id. Whether a business
possesses constructive notice is generally “a question of fact properly left for the
jury.” Id.Viewing the record in the light most favorable to Teodoro, such a dispute
existed here based on the witness statement of Franklin Haley. While working at
his station 15 feet away from Teodoro, Haley “watched [Teodoro] step” and saw
“her foot slip[] out from under her.” He then “looked to the floor and saw a puddle
of clear water approximately 4 inches in diameter.” He then “grabbed a roll of
paper towels” and went over to Teodoro. This series of events sufficed to raise a
triable issue as to Smith’s constructive notice given that Haley apparently could
see the puddle of water from his workstation. See 62A Am. Jur. 2d Premises
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Liability § 503 (“Constructive knowledge may also be shown where, because of
the location of the accident, it can be inferred that the store’s employees could and
should have seen the actual spilling of the liquid or the liquid on the floor after it
was spilled, in time to remove or alert others to its existence.”); id. § 505
(“Constructive knowledge of . . . debris or litter constituting [a] dangerous
condition may . . . be shown where a store employee was in the immediate vicinity
of the dangerous condition and could have easily seen and removed the hazard.”).
REVERSED AND REMANDED.
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