-GWF Linnell v. Carrabba's Italian Grill, LLC, No. 2:2010cv00610 - Document 24 (D. Nev. 2011)

Court Description: ORDER Denying 16 Motion for Summary Judgment. Signed by Judge Edward C. Reed, Jr. on 6/21/11. (Copies have been distributed pursuant to the NEF - MMM)

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-GWF Linnell v. Carrabba's Italian Grill, LLC Doc. 24 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 NORMAN LINNELL, 8 Plaintiff, 9 vs. 10 CARRABBA’S ITALIAN GRILL, LLC, and DOES 1 through 10, inclusive, 11 Defendant. 12 ) ) ) ) ) ) ) ) ) ) ) ) 2:10-cv-00610-ECR-GWF Order 13 14 This case arises out of injuries sustained after a fall in the 15 men’s restroom of Carrabba’s Italian Grill in Las Vegas, Nevada. 16 Now pending is a motion for summary judgment (#16) filed by 17 Defendant. The motion is ripe, and we now rule on it. 18 19 20 I. Factual and Procedural Background On February 12, 2010, Plaintiff Norman Linnell (“Linnell” or 21 “Plaintiff”) entered the men’s restroom in Carrabba’s Italian Grill 22 (“Carrabba’s”) in Las Vegas, Nevada alone on crutches, or 23 alternatively, carrying crutches. 24 (#16).) (Mot. for Summary Judgment at 1 After he failed to return, Plaintiff’s son-in-law, Richard 25 Carney (“Richard”) found him lying on the floor of the restroom. 26 (Opp. to Mot. for Summary Judgment at 8 (#17).) Plaintiff asserts 27 that Richard and Plaintiff’s daughter, Maureen Carney (“Maureen”), 28 and the responding paramedic testified that the floor was wet when Dockets.Justia.com 1 they found Plaintiff. (Id. at 15.) Richard also testified that he 2 observed a janitor with a bucket and mop heading towards the men’s 3 restroom right before Richard entered the restroom and found 4 Plaintiff on the floor. (Id. at 7.) The paramedic testified that 5 the call for help was received at 10:33 p.m. (Opp. Ex. 3 at 14 6 (#17-4).) 7 Defendant asserts that there are multiple inspections 8 throughout the day, there were no malfunctioning toilets, urinals, 9 or sinks, and Defendant’s employees observed no water on the floor 10 before Plaintiff’s fall. 11 (Reply at 3 (#20).) Plaintiff is eighty-nine years old, and at the time of his 12 fall, was working full-time for the McGill Club in McGill, Nevada. 13 (Opp. at 1 (#17).) While Plaintiff has testified that he has no 14 problems walking, his medical records show that he has previously 15 complained of weakness in his legs and frequent falls. 16 Summary Judgment at 3 (#16).)1 (Mot. for On February 7, 2010, Plaintiff 17 arrived at William Bee Ririe Hospital in a wheelchair, complaining 18 of a groin injury. (Id. at 4.) On February 12, 2010, the date of 19 the accident at issue here, Plaintiff went to Centennial Hill 20 Hospital for the same groin injury, accompanied by Maureen and 21 Richard Carney. (Id. at 5.) At the hospital, he went through 22 several examinations and was administered the medications Dilaudid 23 and Ativan. (Id.) Upon discharge from the hospital, Plaintiff 24 headed to Carrabba’s with Maureen and Richard. (Id.) 25 1 27 We note that this evidence would be admissible at trial because evidence regarding pre-existing medical conditions that may have caused or contributed to a slip-and-fall are admissible. See Sementilli v. Trinidad Corp., 155 F.3d 1130, 1133 (9th Cir. 1998). 28 2 26 1 On March 30, 2010, Plaintiff filed suit in the Eighth Judicial 2 District Court of Clark County, Nevada. (Pet. for Removal (#1).) 3 On April 28, 2010, Defendant removed the action to the United States 4 District Court for the District of Nevada on the basis of diversity 5 jurisdiction. 6 (Id.) On January 26, 2011, Defendant filed a motion for summary 7 judgment (#16). On February 8, 2011, Plaintiff filed an opposition 8 (#17) to the motion for summary judgment (#16). On February 9, 9 2011, Plaintiff filed an errata (#18) to the opposition (#17). On 10 February 25, 2011, Defendant filed a reply (#20) in support of its 11 motion for summary judgment (#16). 12 A hearing on the motion for summary judgment (#16) was held on 13 June 14, 2011. 14 15 II. Standard of Review 16 Summary judgment allows courts to avoid unnecessary trials 17 where no material factual dispute exists. N.W. Motorcycle Ass’n v. 18 U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). “On a 19 motion for summary judgment, ‘facts must be viewed in the light most 20 favorable to the nonmoving party only if there is a ‘genuine’ 21 dispute as to those facts.’” Ricci v. DeStefano, 129 S.Ct. 2658, 22 2677 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). 23 “Where the record taken as a whole could not lead a rational trier 24 of fact to find for the nonmoving party, there is no genuine issue 25 for trial.” Ricci, 129 S.Ct. at 2677 (quoting Matsushita Elec. 26 Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 27 Where reasonable minds could differ on the material facts at issue, 28 3 1 however, summary judgment should not be granted. Warren v. City of 2 Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S.Ct. 3 1261 (1996). 4 The moving party bears the burden of informing the court of the 5 basis for its motion, together with evidence demonstrating the 6 absence of any genuine issue of material fact. 7 Catrett, 477 U.S. 317, 323 (1986). Celotex Corp. v. Once the moving party has met 8 its burden, the party opposing the motion may not rest upon mere 9 allegations or denials in the pleadings, but must set forth specific 10 facts showing that there exists a genuine issue for trial. 11 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Anderson Although the 12 parties may submit evidence in an inadmissible form — namely, 13 depositions, admissions, interrogatory answers, and affidavits — 14 only evidence which might be admissible at trial may be considered 15 by a trial court in ruling on a motion for summary judgment. FED . 16 R. CIV. P. 56(c); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 17 1179, 1181 (9th Cir. 1988). 18 In deciding whether to grant summary judgment, a court must 19 take three necessary steps: (1) it must determine whether a fact is 20 material; (2) it must determine whether there exists a genuine issue 21 for the trier of fact, as determined by the documents submitted to 22 the court; and (3) it must consider that evidence in light of the 23 appropriate standard of proof. Anderson, 477 U.S. at 248. Summary 24 judgment is not proper if material factual issues exist for trial. 25 B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 26 1999). “As to materiality, only disputes over facts that might 27 affect the outcome of the suit under the governing law will properly 28 4 1 preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. 2 Disputes over irrelevant or unnecessary facts should not be 3 considered. Id. Where there is a complete failure of proof on an 4 essential element of the nonmoving party’s case, all other facts 5 become immaterial, and the moving party is entitled to judgment as a 6 matter of law. Celotex, 477 U.S. at 323. Summary judgment is not a 7 disfavored procedural shortcut, but rather an integral part of the 8 federal rules as a whole. Id. 9 10 III. Discussion 11 The Nevada Supreme Court has held that the “general rule in 12 section 146 [of the Restatement (Second) of Conflict of Laws] 13 requires the court to apply the law of the state where the injury 14 took place.” Gen. Motors Corp. v. Eighth Judicial Dist. Court, 134 15 P.3d 111, 117 (Nev. 2006). The injury in this case took place at 16 Carrabba’s Italian Grill in Las Vegas, Nevada, and therefore, Nevada 17 law applies. (Mot. for Summary Judgment at 1 (#16).) In Nevada, to 18 prevail on a negligence theory, a plaintiff generally must establish 19 duty, breach of that duty, causation, and damages. Perez v. Las 20 Vegas Medical Center, 805 P.2d 589, 590-591 (Nev. 1991). Defendant 21 may prevail on a motion for summary judgment by negating at least 22 one of the elements of negligence. 23 Id. at 591. In this case, Defendant owed a duty of care to Plaintiff 24 because Plaintiff was a customer in Defendant’s establishment. “[A] 25 business owes its patrons a duty to keep the premises in a 26 reasonably safe condition for use.” 27 849 P.2d 320, 322 (Nev. 1993). 28 Sprague v. Lucky Stores, Inc., However, a business will only be 5 1 liable in a slip-and-fall due to a foreign substance if the foreign 2 substance was on the floor because of actions of the business owner 3 or one of its agents, or if the business had “actual or constructive 4 notice of the condition and failed to remedy it.” Id. at 322-323. 5 In this case, Plaintiff has not alleged that the water on the 6 restroom floor resulted from any actions of Carrabba’s owner or his 7 agents. Plaintiff merely alleges that certain members of 8 Plaintiff’s family, and the responding paramedic, observed some 9 amount of water on the floor after Plaintiff’s accident. 10 In Sprague, the court noted that whether Lucky Stores, Inc. was 11 under constructive notice of the presence of a grape on the floor 12 was a question of fact. Id. at 323. In that case, however, the 13 plaintiff presented evidence that Lucky Stores, Inc. knew that 14 produce was frequently on the floor and that the produce was 15 hazardous. Id. Therefore, “[a] reasonable jury could have 16 determined that the virtually continual debris on the produce 17 department floor put Lucky on constructive notice” of a hazardous 18 condition. 19 Id. In this case, Plaintiff’s evidence concerning notice is 20 comprised principally of a statement by Plaintiff’s son-in-law, 21 Richard, stating that directly before entering the restroom in 22 search of Plaintiff, Richard observed a “janitor with a bucket and 23 mop” heading towards the men’s room. (Opp. to Mot. for Summary 24 Judgment at 7-8 (#17).) While Plaintiff fails to specify the 25 relevance of Richard’s observation, we infer that the quote about a 26 janitor with a bucket and a mop was intended to serve as evidence 27 that Carrabba’s was on actual notice of water on the men’s room 28 6 1 floor that needed to be cleaned up. Plaintiff also included a 2 reference to the statement of Carrabba’s manager, Kyle Dowdy, that a 3 mop and bucket are not normally required during business hours. 4 (Id. at 13.) 5 Plaintiff also argues that there is a factual issue as to 6 “whether there was enough water that Carraba’s [sic] should have 7 been on notice that the floor was wet, especially if bus boys are 8 inspecting the restroom every 15 minutes as Mr. Dowdy contends.” 9 (Id. at 14.) We do not believe that the amount of water on the 10 floor necessarily provides evidence of constructive notice, absent 11 any additional evidence. However, we note that while the amount of 12 water on the floor is not by itself sufficient to infer notice, it 13 may be considered at trial in conjunction with the evidence of the 14 janitor with the bucket and mop. 15 The circumstances in this case are markedly different from 16 those in Sprague v. Lucky Stores, in which frequent instances of 17 spilled produce could have put the defendant on constructive notice 18 of a hazardous condition. Plaintiff has not alleged that Carrabba’s 19 had any history of water or other debris in the restrooms that posed 20 a hazardous condition. The mere fact that the men’s room in 21 Carrabba’s allegedly had water on the floor on this one occasion is 22 simply not enough to serve as constructive notice. The fact that 23 Carrabba’s allegedly checks its restrooms frequently throughout the 24 day does not change that conclusion. Water, if it was indeed on the 25 floor before Plaintiff’s fall, could have been on the floor between 26 inspections. However, taking the evidence regarding water on the 27 floor along with the evidence that a janitor was headed to the 28 7 1 restroom with a bucket and a mop in the light most favorable to 2 Plaintiff, we conclude that Plaintiff has shown that there exists a 3 genuine issue of material fact on the matter of actual or 4 constructive notice. 5 Finally, Defendant contends that Plaintiff has failed to show 6 actual or proximate causation of Plaintiff’s injuries by any breach 7 of Defendant’s. In support of this argument, Defendant cites to 8 Plaintiff’s medical history of falls, the fact that Plaintiff had 9 been to the hospital just a few hours prior to the fall at issue 10 here for treatment of a groin injury, the fact that Plaintiff was on 11 two different medications, the fact that Plaintiff has no 12 recollection of what occurred in Carrabba’s restroom, and the fact 13 that the doctor suggested in the medical history that the fall was 14 the result of a “syncopal episode,” that is, a fainting spell. 15 Because Plaintiff is the non-moving party to this motion, we 16 look upon the disputed evidence regarding the existence of water on 17 the floor in Plaintiff’s favor. We also infer from Plaintiff’s 18 evidence concerning a janitor with a mop and pail that Defendant may 19 have had actual notice of water on the restroom floor. 20 circumstances alone, however, are not enough. These Even if there was a 21 large amount of water on the floor, and Defendant knew about it and 22 did not warn customers of it, Plaintiff’s fall has to be caused by 23 Defendant’s failure to clean or to warn Plaintiff of the water. 24 Here, Plaintiff has submitted very little evidence regarding 25 causation. The argument seems to be that because there was water on 26 the floor and Plaintiff was found on the floor, there is sufficient 27 evidence to find that the water was the cause of his fall. 28 8 1 Defendant, on the other hand, has provided plenty of evidence 2 supporting a contrary view of what happened in Carrabba’s restroom. 3 Plaintiff is elderly, and has a history of falls.2 4 medication when he entered the restroom. He was on His crutches were propped 5 up against the urinal wall, suggesting that he made it that far 6 before either slipping or falling. 7 slipping. He has no recollection of In short, the evidence seems stacked highly in favor of 8 Defendant’s interpretation of events. However, in Worth v. Reed, an 9 elderly guest was found on the powder room floor of the hotel, after 10 the maintenance man failed to inform her that his work cleaning the 11 floor was not yet finished. 384 P.2d 1017, 1017-18 (Nev. 1963). 12 Before the suit, the guest passed away due to unrelated reasons, and 13 therefore was unable to present her version of how she fell, other 14 than through hearsay. Id. at 1017, 1019. The defendant argued that 15 there was insufficient evidence of causation in Worth, but the court 16 concluded that the fact that she was found on the floor, and that 17 there was evidence that the floor was slick and slippery, along with 18 the hearsay evidence, provided evidence from which a jury could 19 20 2 27 While Plaintiff testified that he does not have a history of falls, his medical history suggests otherwise. In Scott v. Harris, the Supreme Court noted that when taking all inferences in favor of the non-moving party to a motion for summary judgment, the existence of incontrovertible or very reliable evidence to the contrary can overcome the presumption in favor of the non-moving party’s version of facts. 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). While the medical records here are not as reliable as the videotape in Scott, we find that reports by Plaintiff’s doctor of weakness in the legs cannot credibly be denied altogether by Plaintiff. 28 9 21 22 23 24 25 26 1 properly infer that the guest slipped and fell because of the water 2 on the tiled floor. 3 Id. at 1019. As in Worth, the evidence regarding causation is slim in our 4 case. However, taking all inferences in favor of Plaintiff, we 5 conclude that a reasonable jury may find that Plaintiff slipped and 6 fell because of the water on the floor. 7 As with the evidence of causation, the evidence of notice is 8 slim. Without that evidence, Defendant would have been entitled to 9 summary judgment in its favor. However, because Plaintiff has 10 presented some evidence that, if taken in the light most favorable 11 to Plaintiff, there was water on the ground and Carrabba’s had 12 actual notice of the water, and a jury may find that the water was 13 the cause of Plaintiff’s fall, Defendant’s motion shall be denied. 14 We conclude that there exists a genuine issue of material fact, 15 namely, whether there was water on the men’s room floor that caused 16 Plaintiff’s injuries. 17 18 19 IV. Conclusion While the evidence in favor of Plaintiff’s allegations is slim, 20 we conclude that there exist genuine issues of material fact 21 concerning whether there was water on the men’s room floor that 22 caused Plaintiff’s injuries, whether Carrabba’s had actual or 23 constructive notice of such water, and whether that water caused 24 Plaintiff’s fall. Based on the foregoing, Defendant’s motion for 25 summary judgment (#16) must be denied. 26 27 28 10 1 IT IS, THEREFORE, HEREBY ORDERED that Defendant’s motion for 2 summary judgment (#16) is DENIED. 3 4 21st 5 DATED: June ______, 2011. 6 ____________________________ UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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