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Lively v. Wild Oats Market, Inc.

United States Court of Appeals for the Ninth Circuit · Civil Procedure

Civil ProcedureSummary JudgmentPremises Liabilitysummary judgmentpremises liabilityactual knowledgeconstructive knowledgedangerous condition

Facts

Emma Lively slipped and fell on spilled water at a Wild Oats store. The record showed no evidence that Wild Oats had actual or constructive knowledge of the spill or that it became aware of the water in time to remove it. It was undisputed that manager Kenneth Admire inspected the accident area five minutes before the fall and saw no spilled water. It was also undisputed that manager Tom Gilbert performed inspection sweeps every half hour that day and found no hazards, despite not recording the exact minute of each sweep in the log.

Issue

Whether summary judgment for Wild Oats was proper where the record contained no evidence that Wild Oats had actual or constructive knowledge of the spilled water that caused Lively's fall. The court also considered whether Lively could avoid that requirement by arguing Wild Oats's mode of operation was unreasonably dangerous, and whether surveillance tapes created a factual dispute despite not being raised in the district court.

Rule

In a slip-and-fall case, a store owner is not liable absent evidence of actual or constructive knowledge of the dangerous condition that caused the accident. A plaintiff cannot avoid that burden by attacking the store's mode of operation. On summary judgment, an appellate court may treat an argument as waived when the nonmovant failed to raise it in response to the summary judgment motion in the district court.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a neighborhood market in Sacramento, Nina Flores slipped on a puddle of yogurt in the dairy aisle. A shift supervisor testified without contradiction that he walked that aisle six minutes earlier and saw a clean floor, and the record contains no evidence showing when the yogurt was spilled.

If the market moves for summary judgment, how should the court most likely rule?

Explanation. A slip-and-fall plaintiff must produce evidence that the owner had actual or constructive knowledge of the dangerous condition, or became aware of it in sufficient time to remove it. Here, the undisputed inspection six minutes earlier and the absence of evidence about how long the yogurt was on the floor leave no basis for notice. The mere existence of a spill does not create a triable issue. (Derived from Lively v. Wild Oats Market, Inc. (n.d.).)