Blain v. Wal-Mart

----ooOoo----

Dee Blain,
Plaintiff and Appellant,

v.

Wal-Mart Stores, Inc.,
a Delaware corporation,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990235-CA

F I L E D
June 15, 2000
  2000 UT App 187  -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Jr.

Attorneys:
G. Steven Sullivan, Murray, for Appellant
Mitchell T. Rice and Todd C. Hilbig, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Davis.

GREENWOOD, Presiding Judge:

Plaintiff appeals the trial court's grant of summary judgment in favor of defendants and denial of her Rule 60(b) motion for relief from the trial court's order. Plaintiff argues the trial court erred by requiring her to attach copies of depositions referred to in her motion for summary judgment and by not considering the evidence contained in those depositions.

When reviewing a trial court's determination that no issues of material fact exist, "we do not defer to the trial court's determination of whether there are material facts in dispute, but review the facts and inferences drawn therefrom in the light most favorable to the losing party." Canfield v. Albertsons, Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992), cert. denied, 853 P.2d 897 (Utah 1993). "Any doubts or uncertainties concerning issues of fact are resolved in favor of the losing party." Id.

Notwithstanding plaintiff's contentions, the trial court properly granted defendant's motion for summary judgment based on the merits of plaintiff's claim. In order to prevail on a claim alleging storeowner liability for a temporary dangerous condition, plaintiff must prove two elements: (1) that the storeowner had either actual knowledge of the condition, or constructive knowledge of the condition because the condition was present long enough that the storeowner should have discovered it; and (2) that after learning of the condition, the storeowner had sufficient time to correct the condition. See Schnuphase v. Storehouse Mkts., 918 P.2d 476, 478 (Utah 1996).

Our review of the evidence contained in the record including the evidence the trial court declined to consider reveals that plaintiff has failed to provide any evidence that Wal-Mart had either actual or constructive knowledge of the spill in time to correct the condition. Neither party disputes that the unsafe condition was of a temporary nature.

In this case, the evidence shows that the only Wal-Mart employee with knowledge of the spill was Ms. Freeman. In her deposition, Ms. Freeman testified that she initially spotted the spill in the fabric department and cleaned it up. As she cleaned, Ms. Freeman noticed a trail of additional spots through the store. Ms. Freeman followed the trail and cleaned up as she proceeded until she reached the spot near the front of the store where the accident occurred.

Plaintiff attempts to create an issue of fact by arguing that a jury could infer that the spill existed for a sufficient time to impute knowledge to Wal-Mart because the parties dispute whether the accident occurred before or after Ms. Freeman cleaned up the spill.(1) This argument is unavailing. Plaintiff has failed to allege any specific facts to support her contention that she slipped before Ms. Freeman started cleaning up the spill, or that the spill had been present for a sufficient duration that Wal-Mart should have found it. Plaintiff's theory requires substantial speculation and leaps of faith which are not supported by the evidence, nor appropriate when determining whether a storeowner has actual or constructive knowledge of the spill. See Koer v. Mayfair Mkts., 19 Utah 2d 339, 431 P.2d 566, 569-70 (1967) (holding mere proof of injury without proof of knowledge is insufficient to find liability and court will not make tenuous inference to find constructive knowledge). To prevail under a constructive knowledge theory, plaintiff must offer some evidence that the spill existed for a sufficient time to warrant imputing knowledge to Wal-Mart. Plaintiff has failed to do so.

Finally, plaintiff asserts that Wal-Mart's method of operation was deficient. Plaintiff argues that if Wal-Mart had a proper periodic "sweep" it would have found the spill. The Utah Supreme Court rejected a similar argument in Schnuphase. See 918 P.2d at 479. A bare assertion that a store's method of operation created a dangerous condition is not sufficient, absent other supporting evidence to show the store could reasonably foresee it had created a dangerous condition. See id. Plaintiff has offered nothing to support her contention that Wal-Mart's method of operation created the dangerous condition causing her accident.

Because we determine that the trial court properly granted defendant's motion for summary judgment based on the merits of the claim and in light of all the evidence contained in the record, we need not address plaintiff's other claims.

Accordingly, we affirm the trial court's grant of summary judgment dismissing plaintiff's action.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge

1. At oral argument, plaintiff's counsel argued that the evidence supported a finding that Wal-Mart had constructive knowledge of the condition rather than actual knowledge.