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Jane Moroni, An Individual v. Lowe's Hiw

November 6, 2012

JANE MORONI, AN INDIVIDUAL,
PLAINTIFF,
v.
LOWE'S HIW, INC., AND DOES 1-50, INCLUSIVE, DEFENDANT.



MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

I. Factual and Procedural Background On October 3, 2010, at about 7:00 p.m., plaintiff Jane Moroni went with her friend to defendant Lowe's HIW, Inc.'s retail store on Zinfandel Drive in Rancho Cordova in search of a fern. (Goodman Decl. Ex. D ("Moroni Dep.") at 21:11, 22:1-4, 22:8-9 (Docket No. 14-6).) She was wearing rubber flip-flops. (Id. at 23:10-24.) As she was perusing the second aisle, plaintiff paused to smell the pansies, but they had no scent. (Id. at 39:20-23.) While stopped, plaintiff noticed three strips of water on the ground, each about one and a half to two inches thick and about three inches apart from the others. (Id. at 37:5-6, 37:10-12, 37:22, 38:6-7, 38:18-19.) They were streaming across the width of the aisle some two to three steps away from her. (Id. at 39:17.)

Plaintiff decided to cross the water by stepping in the dry gaps of concrete between each stream. (Id. at 41:24-25.) She successfully stepped over the first stream. (Id. at 41:22-42:1). After her left foot was over the second stream, she moved to bring her right foot over, but the heel of her flip-flop caught in the water. (Id. at 43:11-17.) She slipped and fell. (Id.)

Plaintiff filed suit in state court against defendant for premises liability. Defendant then removed the case to this court on the basis of diversity jurisdiction. (Docket No. 1.) Defendant now seeks summary judgment on all of plaintiff's claims pursuant to Federal Rule of Civil Procedure 56.

II. Analysis

Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that could affect the outcome of the suit, and a genuine issue is one that could permit a reasonable jury to enter a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The party moving for summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact and can satisfy this burden by presenting evidence that negates an essential element of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party meets its initial burden, the burden shifts to the non-moving party to "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting then-Fed. R. Civ. P. 56(e)).

In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor.

Anderson, 477 U.S. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . ." Id.

A. Dangerous Condition

In California, a store owner owes a duty to its patrons

to "exercise reasonable care in keeping the premises reasonably safe." Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1205 (2001). The store owner is not the insurer of the safety of its patrons. Id. at 1206. However, to exercise ordinary care, a store owner must make "reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved." Id. at 1205.

Defendant argues that it did not breach any duty to maintain its premises in a reasonably safe manner because no dangerous condition existed and plaintiff's fall was instead due only to her own carelessness in stepping "onto the water streams . . . with flip flop sandals." (Mot. 6:16-17; see id. at 5:12- 13, 11:4-5, 13:27-28.) Defendant supports its position with two facts: (1) plaintiff saw the water streams on the floor before she attempted to cross them, (Moroni Dep. at 37:5-9), and (2) expert testimony that the concrete surface of the store's nursery area is considered a "non-slip surface under wet conditions and offers safe traction for pedestrian use," (Wong Decl. ¶ 11).

Plaintiff disputes that her own actions caused her to fall. Plaintiff explains in her deposition that she slipped because of the water on defendant's floor.*fn1 (Moroni Dep. at 43:13-17.) Contrary to defendant's contention, she states that she proceeded with caution when she attempted to navigate around the streams of water. (Id. at 41:19.) It is also undisputed that there was water on the floor at defendant's store and that plaintiff fell. A reasonable finder of fact could therefore conclude that plaintiff did not cause herself to fall, but instead that the presence of the water on the nursery floor was a dangerous condition that caused her to slip. A genuine issue of material ...


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