-PAL Damjanovic v. The Vons Companies, Inc. et al, No. 2:2010cv00802 - Document 29 (D. Nev. 2011)
Court Description: ORDER granting Defendants' 17 Motion for Summary Judgment. Signed by Judge Gloria M. Navarro on 7/21/11. (Copies have been distributed pursuant to the NEF - ECS)
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-PAL Damjanovic v. The Vons Companies, Inc. et al Doc. 29 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 SLAVKO DAMJANOVIC, 4 Plaintiff, 5 vs. 6 7 8 THE VONS COMPANIES, doing business as VONS STORE 1963 AND SAFEWAY INC., VONS DIVISION Defendants. 9 ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:10-cv-00802-GMN-PAL ORDER 10 11 Pending before the Court is Defendants’ Motion for Summary Judgment (ECF No. 17), 12 which was filed on December 16, 2010. No Response has been submitted. For the reasons that 13 follow, the Motion will be GRANTED. 14 I. 15 BACKGROUND This is a personal injury lawsuit arising out of injuries Plaintiff Slavko Damjanovic 16 (“Plaintiff”) allegedly sustained after he slipped and fell at a grocery store operated by 17 Defendants. Although the case was initiated in state court, Defendants removed it to this Court, 18 invoking diversity jurisdiction. Having considered the Supplemental Brief (ECF No. 26) filed 19 by Defendants in support of diversity jurisdiction in this case, the Court finds that Defendants 20 have met their burden of establishing that the Court has subject matter jurisdiction over this 21 lawsuit. 22 After discovery had been conducted in this matter, Defendants filed a Motion for 23 Summary Judgment (ECF No. 17). Plaintiff, who is currently self-represented, has failed to 24 respond to the Motion, despite having been given a Klingele v. Eikenberry notice (ECF No. 18) 25 and ample time in which to file a Response. Page 1 of 6 Dockets.Justia.com 1 2 II. SUMMARY JUDGMENT STANDARD The Federal Rules of Civil Procedure provide for summary adjudication if “the movant 3 shows there is no genuine dispute as to any material fact and the movant is entitled to a 4 judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that may affect the 5 outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute 6 as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a 7 verdict for the nonmoving party. See id. “Summary judgment is inappropriate if reasonable 8 jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the 9 nonmoving party=s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 10 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal 11 purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” 12 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 13 In determining summary judgment, a court applies a burden-shifting analysis. “When 14 the party moving for summary judgment would bear the burden of proof at trial, it must come 15 forward with evidence which would entitle it to a directed verdict if the evidence went 16 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 17 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 18 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 19 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 20 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 21 essential element of the nonmoving party=s case; or (2) by demonstrating that the nonmoving 22 party failed to make a showing sufficient to establish an element essential to that party’s case 23 on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323– 24 24. If the moving party fails to meet its initial burden, summary judgment must be denied and 25 the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., Page 2 of 6 1 398 U.S. 144, 159–60 (1970). 2 If the moving party satisfies its initial burden, the burden then shifts to the opposing 3 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 4 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 5 the opposing party need not establish a material issue of fact conclusively in its favor. It is 6 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 7 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 8 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid 9 summary judgment by relying solely on conclusory allegations that are unsupported by factual 10 data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go 11 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 12 competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. 13 At summary judgment, a court’s function is not to weigh the evidence and determine the 14 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 15 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 16 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 17 not significantly probative, summary judgment may be granted. See id. at 249–50. 18 III. 19 ANALYSIS Plaintiff’s Complaint (Ex. 1, ECF No. 1) does not clearly set out the cause or causes of 20 action that he is pursuing. However, Plaintiff appears to be bringing a single negligence cause 21 of action. 22 Because Defendants would not bear the burden of proof at trial, in order to be entitled 23 to summary judgment they need only: (1) demonstrate that Plaintiff failed to make a showing 24 sufficient to establish an element essential to his case, or (2) present evidence negating an 25 essential element of Plaintiff’s negligence claim. See Celotex Corp., 477 U.S. at 323–24. Page 3 of 6 1 Defendants have demonstrated that Plaintiff has failed to make a showing as to the breach and 2 causation elements of his negligence claim; therefore, they are entitled to summary judgment. 3 A. 4 In Nevada, like elsewhere, a plaintiff must establish four elements in order to prevail on Negligence Standard 5 a negligence claim: (1) an existing duty of care; (2) a breach of that duty; (3) legal causation; 6 and (4) damages. Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1175 (Nev. 2008). 7 Defendants do not dispute that business proprietors owe their invitees--such as Plaintiff--a duty 8 to use reasonable care to keep their business’s premises in a reasonably safe condition for use. 9 See Doud v. Las Vegas Hilton Corp., 864 P.2d 796, 799 (Nev. 1993). 10 B. Breach of Duty 11 Defendants do, however, contend that Plaintiff has failed to produce evidence showing 12 that they breached their duty to use reasonable care to keep their premises in reasonably safe 13 condition for use. The Court agrees. Plaintiff has produced no evidence indicating that 14 Defendants failed to use reasonable care in maintaining their property; “failed to take 15 reasonable precautions to protect the invitee from dangers which are foreseeable . . . .” 16 Twardowski v. Westward Ho Motels, Inc., 476 P.2d 946, 947 (Nev. 1970); or failed to warn 17 Plaintiff of a hidden danger that Defendants knew, or reasonably should have known, about. 18 Plaintiff alleged in his Complaint that “he slipped and fell as a result of a foreign liquid 19 substance which Defendants had caused to be on the premises or negligently allowed to exist 20 there,” (Compl. ¶ 7, Ex. 1, ECF No. 1), but has failed to produce any evidence in support of 21 that claim. Because a plaintiff cannot defeat a motion for summary judgment by relying solely 22 on allegations without evidentiary support, see Taylor, 880 F.2d at 1045, Defendants’ Motion 23 for Summary Judgment will be granted. 24 Not only have Defendants pointed to the lack of evidence in the record pertaining to the 25 breach element of Plaintiff’s claim, they have also produced their own evidence indicating that Page 4 of 6 1 they did not breach their duty to exercise reasonable care in maintaining reasonably safe 2 premises. Specifically, they have attached a signed safety report from a Certified Safety 3 Specialist, in which the Specialist concluded that, even if the floor were wet, “[t]he floor 4 surface provides good surface friction for safe foot traction under dry and wet conditions, as 5 noted during coefficient of friction testing.” (See Ex. C, ECF No. 17.) Furthermore, the 6 Specialist reported that “[s]tore procedures for inspection are excellent and exceed industry 7 practice” and that “[l]ighting in the store is good. The reported liquid substance would be open 8 and obvious.” (Id.) Plaintiff has submitted no evidence to rebut this showing that Defendants 9 had taken reasonable measures to prevent exactly the sort of accident about which Plaintiff 10 complains. Summary judgment will be granted. 11 C. Causation 12 In order to prevail on a negligence claim, Plaintiff would also have to prove that his 13 injuries were proximately caused by Defendants’ failure to use reasonable care to keep its 14 premises in a reasonably safe condition for use. “Proximate cause has been widely defined as 15 that cause which, in natural and continuous sequence and unbroken by any efficient, 16 intervening cause, produces the injury complained of and without which the result would not 17 have occurred.” Doud, 864 P.2d at 801. Proximate cause consists of two components: cause in 18 fact and foreseeability. Id. Cause in fact requires proof that Defendants’ failure to exercise 19 reasonable care “was a substantial factor in bringing about [Plaintiff’s] injury.” Id. 20 Foreseeability “is essentially a policy consideration that limits a proprietor’s liability to 21 consequences that have a reasonably close connection with both the proprietor’s conduct and 22 the harm that conduct originally created.” Id. 23 As a preliminary matter, the causation element cannot be fulfilled if Defendants did not 24 breach their duty to use reasonable care to keep their premises in a reasonably safe condition 25 for use. However, even if there were a question of material fact as to whether Defendants Page 5 of 6 1 breached their duty, Plaintiff has failed to produce any evidence suggesting that he can satisfy 2 the causation element. Other than the unsupported allegations contained in his Complaint 3 indicating that he slipped on some sort of liquid that was on the floor, Plaintiff has failed to 4 bring forward anything indicating that Defendants’ alleged breach of their duty to him “was a 5 substantial factor” in bringing about the injuries that he now complains of. Mere allegations 6 are insufficient to overcome Defendants’ Motion, and summary judgment must be entered. CONCLUSION 7 8 9 10 IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 17) is GRANTED. DATED this 21st day of July, 2011. 11 12 13 ________________________________ Gloria M. Navarro United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 of 6
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