LaFlamme et al v. Safeway Inc., No. 3:2009cv00514 - Document 54 (D. Nev. 2010)

Court Description: ORDER DENYING 48 Motion for Partial Summary Judgment. FURTHER ORD DENYING 49 Motion for Summary Judgment. Signed by Judge Edward C. Reed, Jr on 12/3/2010. (Copies have been distributed pursuant to the NEF - DRM)
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1 2 3 4 UNITED STATES DISTRICT COURT DISTR ICT OF NEVADA 5 RENO , NEVADA 6 7 KJ LAFLAMME and ROBERT LAFLAMMEy W 8 wife and husband, 9 1 0 11 1 2 1 3 1 4 15 16 1 7 18 1 9 LaFlamme et al v. Safeway Inc. ) ) ) Plaintiffs, ) ) vs. ) ) SAFEWAY INC.; a Delaware ) Corporation, JOHN DOES I-XXX, ) ) Defendants . ) ) ) SAFEWAY INC ., a Delaware ) Corporation, ) ) Third-party Plaintiff, ) ) vs. ) ) RETAIL MARKETING SOLUTIONS, INC., ) a California Corporation, ) ) Third Party Defendant. ) ) 3:O9-CV-514-ECR-VPC Order Doc. 54 20 This diversity action arises out of an incident wherein 21 Plaintiff Kay LaFlamme ( nKay') fell over a pallet, a flat transport ' 22 structure that supports goods, while she was working at a Safeway 23 store in the capacity of a vendor . Plaintiffs in this case are Kay 24 and her partner, Robert LaFlamme (' 'Robert'l. Plaintiffs assert two z 25 claims for relief. Kay asserts a claim for negligence and Robert 26 for loss of consortium . 27 Defendant and third party plaintiff is Safeway, Inc. ( usafeway') ' 28 Dockets.Justia.com a Delaware Corporation. Third party l defendant is Retail Marketing Solutions , Inc ., a California 2 corporation . 3 Now pending are Safeway's uMotion for Partial Summary Judgm ent 4 A s To The Los s of Consortium Claim of Plaintif f Robert LaFlan t ' ure' 5 (148) and Safeway's XMotion for Summary Judgment As To The Claim of : ' 6 Plaintiff Kay LaFlamme' (' ' 'MSJ') ( 49). ' # 7 1 . Fa etual and Procedurai Backcround 8 9 - Kay is a former employee of Merchandising Serviees, Inc . 1 ( 0 nMSI'). ' ( Kay LaFlamme Dep. 15:6-9) ( #49-1).) Kay worked for MSI 11 as a team leader for a merchandise display group. ( Id.) The 1 incident that gave rise to the present action took place on or about 2 13 September 21, 2007 at a Safeway supermarket in Susanville , 14 california, while Kay was working for MSI as a vendor for Safeway. 1 ( 5 Compl . % V ( #1).) Qn that day, Kay tripped over a pallet that had 1 been placed in a Safeway aisle while walking backwards, pulling a 6 17 gravity-feed soup dispensing system . ( Kay LaFlamme Dep . 97:23-25 1 ( 8 449-1).) As a result, Kay sustained injuries. 1 9 On September 3, 2009, Plaintiffs filed the complaint ( #1) in 20 this action . On August 26, 2010, Safeway filed a uMotion for 21 Partial Summary Judgment As To The Loss of Consortium Claim of 22 Plaintiff Robert LaFlamme' ( ' #48) and a nMotion for for Summary 23 Judgment As To The Claim of Plaintiff Kay LaFlamme' ( ' #49). 24 Plaintiffs opposed ( 53 and 52) the motions. No replies have been ## 25 filed . 26 27 28 2 % l II . Summarv Judcment Standard 2 Summary judgment allows courts to avoid unnecessary trials 3 where no m aterial factual dispute exists . N . . Motorcvele A ss'n v . W 4 U . . Der 't of Agricw S 18 F.3d 1468, 1471 ( 9th Cir. 1994). The court 5 must view the evidence and the inferences arising therefrom in the 6 light most favorable to the nonmoving party , Ba/dadi v . Nazar , 84 7 F.3d 1194, 1197 ( 9th Cir. 1996), and should award summary judgment 8 where no genuine issues of material fact remain in dispute and the 9 moving party is entitled to judgment as a matter of law. FED. R. 10 Cl P. 56( v. c). Judgment as a matter of 1aw is appropriate where 11 there is no legally sufficient evidentiary basis for a reasonable 1 Jury to find for the nonmoving party. FED. R. Cl P. 5O ( 2 v. a). Where 13 reasonable minds could differ on the material facts at issuey 1 however, summary judgment should not be granted. Warren v. Citv of 4 1 Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, ll6 S.Ct. 5 1 1261 ( 6 1996). 1 7 The m oving party bears the burden of inform ing the court of the 1 basis for its motion, together with evidence demonstrating the 8 1 absence of any genuine issue of m aterial fact . Celotex Corr . v . 9 20 Catrettr 477 U. 317, 323 ( S. 1986). Once the moving party has met 21 its burden, the party opposing the motion may not rest upon mere 22 allegations or denials in the pleadings, but must set forth specific 23 facts showing that there exists a genuine issue for trial . Anderson 24 v. Libertv Lobbv, Incw 477 U.S. 242, 248 (1986). Although the 25 parties may subm it evidence in an inadm issible form - nam ely, 26 depositions, admissions, interrogatory answers, and affidavits - 27 only evidence which might be admissib le at trial may be considered 28 ; 1 by a trial court in ruling on a motion for summary judgment. FED. 2 R. Cz P. 56( v. c); Bevene v. Coleman Sec. Servs., Incw 854 F.2d 3 1179, 1181 (9th Oir. 1988). 4 In deciding whether to grant summary judgment, a court must 5 take three necessary steps: ( it must determine whether a fact is 1) 6 material; ( it must determine whether there exists a genuine issue 2) 7 for the trier of fact , as determined by the documents submitted to 8 the court; and ( it must consider that evidence in light of the 3) 9 appropriate standard of proof. Anderson , 477 U .S . at 246. Summary 1 judgment is not proper if material factual issues exist for trial. 0 11 B. v. Plumas Unified Sch. Distw l92 F.3d 1260, 1264 ( C. 9th Cir. 1 1999). *As to materiality, only disputes over facts that might 2 ' 13 affect the outcome of the suit under the governing law will properly 1 preclude the entry of summary judgment.' Anderson, 477 U. at 248. 4 / S. 15 Disputes over irrelevant or unnecessary facts should not be 16 considered . Id . Where there is a comp lete failure of proof on an 17 essential element of the nonmoving party 's case, a1l other facts 18 become immaterial, and the moving party is entitled to judgment as a 1 matter of law. Celotex, 477 U.S. at 323. Summary judgment is not a 9 20 disfavored procedural shortcut , but rather an integral part of the 21 federal rules as a whole . ld . 22 23 111 . D iscussion 24 A . Choice of Law 25 Safeway contends that California 1aw applies to Kay's 26 negligence claim . Plaintiffs contend that the choice of law issue 27 is a ufalse conflict' because nthere is no significant difference ' 28 4 1 between the sub stantive law of California and Nevada . . . .' ' 2 Opp . To MSJ at 3 ( #52).) ( Ps.' Safeway takes no position regarding 3 whether California or Nevada 1aw applies to Robert's loss of 4 consortium claim . 5 Plaintiffs contend that Nevada law applies . A district court sitting in diversity applies the choice of law 6 rules of the forum state . Clearv v . News Corr w 30 F.3d 1255, 1265 7 ( 9th Cir. 1994). Therefore, Nevada' conflict of law rules govern s 8 whether Nevada or California law governs Plaintiffs' claims . Klaxon 9 Co. v. Stentor Electric Mfcw 313 U. 487, 496 ( S. 1941). The Nevada 10 Supreme Court has held that the nmost significant relationship test 11 E described in the Restatement ( Second) of Conflict of Laws 5 145 1 ( 2 l97l)q governs choice of law issues in tort actions unless another, 13 m ore specific section of the Second Restatement applies to the 14 particular tort .' Gen . Motors Corr . v . Eiqhth Judicial Dist . Court , ' 15 134 P.3d 111, 116 ( Nev. 2006). 16 17 a . Choice of Law : Negligence Claim Section 146 of the Second Restatement nprovides a 1 particularized framework for analyzing choice-of-law issues in 8 1 personal injury cases.' 1d. at 117. Under section 146, nthe rights 9 ' 20 and liabilities of the parties are governed by the 'local law of the 21 state where the injury occurred' unless ' some other state has a more 22 significant relationship ' to the occurrence under the principles 23 stated in section 6.' ld. ( / quoting Restatement ( Second) of 24 Conflict of Laws 5 146). The Nevada Supreme Court has held that the 25 ngeneral rule in section 146 requires the court to apply the law of 26 the state where the injury took place.' Id. Therefore, 'in order ' ' 27 for the analysis to m ove past this general rule and into the section 28 5 1 6 principles, a party must present some evidence of a relationship 2 between the nonforum state , the occurrence giving rise to the claims 3 for relief, and the parties . If no evidence is presented, then the 4 general rule of section 146 governs .' Id . ' 5 In this case, the injury at issue took place in California. 6 The parties present no evidence that Nevada law should govern this 7 claim . Therefore, California 1aw governs Plaintiffs' negligence 8 claim . 9 1 0 1 . Negligence Claim Safeway's motion for summary judgment is based on ua complete 11 defense, Qpen and Obvious condition, and is based upon Plaintiff 12 being unable to establish an element of plaintiff's claim which is 13 duty.' ' ( MSJ at 8 ( #49).) Safeway contends that the pallet was an 1 open and obvious danger based on the following evidence: The pallet 4 1 itself is wooden, has slats and is four feet by four feet. 5 ( Kay 1 Laflamme Dep . 59:5-15 ( 6 #49-1).) There was nothing blocking the 17 pallet from view or hiding it ; the pallet was slightly to the right 1 of center of the aisle. 8 ( Id. 60:3-7.) Kay claims she was looking 1 over her left and right shoulder as she walked backwards. ( 9 ld. 20 97: 23-25.) Safeway claims that the nsimple fact that Plaintiff was 21 walking backward does not alter E the circumstance that the danger 22 was open and obviousl.' ' 23 ( MSJ at 10 ( #49).) Plaintiffs claim that the issue of whether the pallet posed an 24 open and obvious danger is a jury question. In the alternative, 25 Plaintiffs contend that even if the pallet was open and obvious, 26 Defendants are still negligent for creating the danger in the first 27 place . We note that Plaintiffs also assert that Safeway has cherry 28 6 1 picked facts in their motion, leading to distortion of the truth . 2 In support of Plaintiffs' opposition to Safeway 's m otion , Plaintiffs 3 attach the entirety of Kay's deposition to their opposition without 4 citing any page or line number that could possibly illustrate the 5 alleged distortion or provide a clearer picture of the events in 6 question . Under Ninth Circuit law , uwhen a party relies on 7 deposition testimony in a summary judgment motion without citing to 8 page and line numbers, the trial court may in its discretion exclude 9 the evidence .' Orr v . Bank of America, NT & SA , 285 F.3d 764, 775 ' 1 (9th cir. 2002). We decline to read the entirety of Kay's 0 11 deposition in an attempt to identify possible distortions. Because 12 Plaintiffs cite to no other evidence , we will consider only the 13 parts of the deposition cited by Defendant in deciding wbether 14 Safeway has carried their burden of showing an absence of material 15 issues of fact . 1 6 uln order to establish g premises! liability on a negligence 17 theory, a plaintiff must prove duty , breach, causation and damages .' ' 1 orteGa v. Kmart Corr w 36 P.3d ll, 14 ( 8 Cal. 2001) ( citations 1 omitted). Generally, 'if a danger is so obvious that a person eould 9 ' 20 reasonably be expected to see it , the condition itself serves as a 21 warning, and the landowner is under no further duty to remedy or 22 warn of the condition .' Krongos v . Pacific Gas & Eiectric Co., 9 ' 23 cal. Rptr. 2d 124, 127 ( Cal. Ot. App. 1992). Nevertheless, 'that ' 24 the hazard Eils open and obvious g doesl not relieve E defendant of a) 25 a22 possible duty, or breach of Xuty, with respect to it.' Martinez ' 26 v . Chirrewa Enters.ê lnc w 18 Cal . Rptr . 3d 152, l55 ( Cal . Ct . App . 27 2004). n l llt is foreseeable that even an obvious danger may cause 28 7 1 injury, if the practical necessity of encountering the danger, when 2 weighed against the apparent risk involved, is such that under the 3 circumstances, a person might choose to encounter the danger .' ' 4 Kroncos, 9 Cal. Rptr. 2d at 127. 'The foreseeability of injury, in ' 5 turn , when considered along with various other policy considerations 6 such as the extent of the burden to the defendant and consequences 7 to the community of imposing a duty to remedy such danger m ay lead 8 to the legal conclusion that the defendant owed a duty of due care 9 to the person injured.' Id. at 127-28. ' 10 In this case , neither the size of the pallet nor its 11 positioning are dispositive . A pallet is moveable and one could 12 infer that the pallet was placed in Kay's pathway in the seconds 13 before her fall. The context in which Flaintiff encountered the 1 pallet is unclear from the deposition testimony cited by Defendants . 4 15 Thus, we cannot say as a matter of 1aw that the pallet was so 16 obvious that a person could reasonably be expected to see it . Id . 1 at 127. Thus, Safeway's motion for summary judgment is denied with 7 18 respect to the issue of the openness and obviousness of the danger . 1 Defendants also contend that the open and obviousness of a danger 9 20 obviates any duty to the Plaintiff . As noted above, nthat the 21 hazard E ils open and obvious E doesq not relieve E defendant of all a1 22 possible duty, or breach of duty, with respect to it .' Martinez, 18 ' 23 Cal. Rptr. 3d at 155. Thus, we likewise reject Safeway's 24 alternative basis for summary judgment. 25 26 b . Choice of Law : Loss of Consortium Because no more specific section of the Second Restatement 27 applies to loss of consortium claims, the multifactor analysis in 28 g 1 the Restatement ( Second) Conflict of Laws, 5 l45 applies . Gen . 2 Motors Corr ., 134 P .3d at ll6 . l Under section 145, 'the rights and ' 3 liabilities of the parties with respect to an issue in tort are 4 determined by the local 1aw of the state which , with respect to that 5 issue , has the m ost signif icant relationship to the occurrence and 6 the parties under the principle s stated in 5 6 .' Restatement ' 7 ( Second) Conflict of Laws, 5 145 . Contacts to be considered 8 include: ' ( ) the place where the injury occurred, ( ) the place 'a b 9 where the conduct causing the injury occurred, ( ) the domicil, c 10 residence , nationality, place of incorporation and place of business 11 of the parties, and ( the place where the relationship, if any, d) 1 between the parties is centered .' Id . 5 145 ( ) 2 ' 2 1 3 The first factor we consider is the place where the injury 1 occurred . California is where the alleged injury to Kay oecurred, 4 1 but Nevada is where injury to Plaintiffs' relationship occurred 5 16 because the loss of consortium took p lace in Nevada , where 17 Plaintiff s live , not California . Because Nevada is where Plaintiffs 1 live , Nevada is where the damage to the relationship of plaintiff s 8 19 was experienced . The second factor is the place where the conduct 20 causing the injury occurred. That was California. Third, is 21 domicile , residence , and place of business and incorporation of the 22 parties . Plaintiffs ' residence and domicile is Nevada . 23 defendants are incorporated in Delaware . The For the purposes of a ' 24 claim of loss of consortium , however, the residence and domicile of 25 plaintiffs is the more relevant situs since it is the place of the 26 consortium of plaintif fs . California 's interests are non existent 27 in the personal relationship between two Nevada residents who live 28 9 ' 1 in Nevada . Finally, the last factor is where the relationship 2 between the parties is centered . ln this case , the center of 3 relationship for the loss of consortium is in Nevada . 4 Thus, we conclude that, on balance, the state with the m ost 5 significant connection to the injury to Plaintiffs' relationship is 6 Nevada . See also Doe v . Nevada Crossinc, Inc w 92O F .supp . 164, l66 7 ( Utah 1996) C' D. The substance of a claim for loss of consortium is 8 the injury or breach of the spousal relationship .' ; Stutsman v. o 9 Kaiser Foundation Health Plan of Mid-Atlantic States, lnc w 546 A . 2d 1 367, 373 ( 0 D.C. 1988) (V Tlhe tort of loss of consortium is a ' 11 distinct cause of action for injury to the marriage itself involving 1 the prosecution of separate and independent rights . . . .' ); Card 2 ' 1 v. American Brands corpw 401 F. Supp . 1186, 1188 ( 3 S.D. Y . 1975) N. 1 ( 4 Loss of consortium claim for an accident in Virginia was a claim of 1 injury nto the marriage - an incident of Oregon.') 5 ' 16 17 1. Loss of Consortium Claim It is undisputed that Kay and Robert LaFlamme were married in 1 1968 and divorced in 1977. 8 ( Kay LaFlamme Dep. 11:24-12: ( 5 #48-1).) 19 Though they never remarried , Kay and Robert LaFlamme have been 20 living together on and off since 1977 and have been living together 21 consistently since 2002 . ( . 12 :5-18 .) Id The Nevada Supreme Court 22 has never addressed the question of whether an unmarried person can 23 assert a loss of consortium claim . Safeway contends that Nevada , if 24 given the opportunity to do so, would reach the same conclusion as 25 california and hold that unm arried couples cannot assert loss of 26 consortium claims . Plaintiffs do not argue that Nevada would 27 recognize such a claim but instead urge us to not consider the 28 I n 1 issue : nGiven the uncertainty as to how the Nevada Supreme Court 2 would rule, grant of summary judgment as to Robert's claim makes no 3 sense in terms of sound judicial administration.' ( ' P.'s Opp . at 2 4 ( #53).) We disagree. Plaintiffs chose to file their lawsuit in 5 federal court and invoke our diversity jurisdiction. As Plaintiffs 6 are likely aware, ' wq H hen a decision turns on applicable state 1aw 7 and the state's highest court has not adjudicated the issue, a 8 federal court must make a reasonable determination of the result the 9 highest state court would reach if it were deciding the case .' Kona ' 1 Enterrrises, lnc. v. Estate of Bishor, 229 F. 877, 885 n.7 (9th 0 3d 11 Cir. 2000). The issue of whether Nevada would recognize a loss of 12 consortium claim is one of law , and resolving the issue earlier in 13 the litigation serves b0th the parties' and the eourt's interests . 14 We now turn to the question of whether Nevada would recognize a loss 15 of consortium claim for an unmarried person . 1 6 In Norman v . General Motors Corr w 628 F.supp . 702 ( Nev . D. 1 1986), we were faced with this precise issue and predicted that the 7 18 uNevada Supreme Court would not arbitrarily deny a claim for loss of 19 consortium to a plaintiff who had been involved in a significant 20 relationship .' Id . at 706. ' Since we decided Norman , the Nevada 21 Supreme Court has remained silent with respect to the question of 22 whether a claim for loss of consortium is available to an unmarried 23 plaintiff involved in a significant relationship . We cannot find, 24 nor has Safeway presented, any compelling reason to deviate from 25 Norman and we decline to do so . Thus, Safeway's nMotion for Partial 26 Summ ary Judgm ent A s To The Loss of Consortium Claim of Plaintiff 27 Robert Laplamme' ( ' #48) will be denied. Nevertheless, because the 28 I! ' 1 parties have not addressed the issue of whether Plaintiffs are 2 involved in a ' 'significant relationship' within the m eaning of ' 3 Norman this order is silent as to whether Plaintiffs' relationship 4 is such that Robert can assert a loss of consortium claim . Our 5 ruling today is limited to the issue of whether Nevada would 6 recognize a loss of consortium claim asserted by an unm arried 7 person . The parties may address the issue of whether Plaintiffs are 8 involved in a usignificant relationship' and thus whether Robert may ' 9 assert a loss of consortium claim at trial . 10 11 VI . Conclusion 12 Under Nevada's choice of law rules, California law governs 13 Kay's negligence claim and Nevada 1aw governs Robert's loss of 14 consortium claim . Kay's negligence claim survives the present 15 motion to dism iss because there rem ain issues of material fact with 16 respect to whether the pallet was an open and obvious danger . 17 Moreover, even if the pallet was open and obvious, Safeway may still 18 have breached a duty to Kay . Finally, we predict that the Nevada 19 Supreme Court would recognize a claim for loss of consortium for an 20 unm arried person in a significant relationship . 21 22 23 IT IS , THEREFORE , HEREBY ORDERED that Defendant Safeway's 24 uMotion for Partial Summary Judgment As To The Loss of Consortium 25 Claim of Plaintiff Robert LaFlamme' ( ' #48) is DENIED . 26 27 28 l 2 IT IS FURTHER HEREBY ORDERED that Defendant Safeway's nMotion Summary Judgment As To The Claim of Plaintiff Kay LaFlamme' ' is DENIED . D cm e 3 e eb r , UIE SAE S D ISTR IC T JU DGE NTD TC T 21 13