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Elizabeth Antim v. Fred Meyer Stores

March 30, 2011

ELIZABETH ANTIM, PLAINTIFF-APPELLANT,
v.
FRED MEYER STORES, INC., CLEANING SERVICES GROUP, INC., DEFENDANTS-RESPONDENTS, AND MIROSLAW CLERENA AND MIREX CLERENA D/B/A POSEIDON JANITORIAL AND JOHN & JANE DOES I-X, DEFENDANTS.



Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gregory M. Culet, District Judge.

The opinion of the court was delivered by: Melanson, Judge

2011 Opinion No. 16

Stephen W. Kenyon, Clerk

Order dismissing claims and granting summary judgment in favor of defendants in personal injury action, affirmed; order denying motion for reconsideration, affirmed.

Elizabeth Antim appeals from the district court's dismissal of her claims of negligence and negligent supervision against Fred Meyer Stores, Inc. and Cleaning Services Group, Inc. (CSG). Specifically, Antim asserts that the district court erred by granting Fred Meyer's andCSG's motions for summary judgment. Antim also appeals from the district court's order denying her motion for reconsideration. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

Antim was shopping with her husband at a Fred Meyer store around 10:30 p.m. when, upon entering the coffee aisle, Antim caught her foot on something and fell to the ground. Antim looked at her feet to see what she tripped over and noticed a folded floor mat. Antim and her husband notified a Fred Meyer employee of the accident, who interviewed Antim and her husband, filled out an incident report, and inspected the accident site. The employee suggested that a member of the cleaning crew may have folded the floor mat in order to prepare the aisle for cleaning.

Antim filed a complaint alleging common law negligence and negligent supervision against both Fred Meyer and CSG, the company who provided cleaning services for the store where the accident occurred. Antim alleged that Fred Meyer and CSG breached their duty of care to maintain the store premises in a reasonably safe condition or to warn of hidden or concealed dangers of which they were or should have been aware. Specifically, Antim contended that a CSG employee left the folded mat in the coffee aisle directly in the path of customers.

Fred Meyer and CSG each filed motions for summary judgment. In support of their motions, Fred Meyer and CSG included the affidavit of the store manager on duty the night of the accident and an excerpt from Antim's deposition. In his affidavit, the store manager averred that he inspected the coffee aisle between 10:10 and 10:15 p.m. and recalled seeing the floor mat lying completely flat on the floor below the coffee grinder. In addition, the store manager averred that the night cleaning crew had arrived at the time of his inspection, but were cleaning another part of the store. The store manager also maintained that he did not see any other floor mats in the store rolled up or folded over and that the cleaning crew had not yet cleaned the coffee aisle. Further, the store manager indicated that there were other customers and employees in the store at the time of the accident and that it was possible that a customer or employee caused the mat to fold over prior to Antim's fall.

In her deposition, Antim stated that she did not notice whether the mat was folded over prior to her fall. She also indicated that she could not remember how the mat was folded, did not know when the mat was folded, and did not observe anyone else in the aisle.

The district court granted Fred Meyer's and CSG's motions for summary judgment, holding that the questions of how and when the mat became folded were too speculative to be decided by a jury. Antim filed a motion for reconsideration, which the district court denied. Antim appeals.

II.ANALYSIS

The district court granted summary judgment in favor of Fred Meyer and CSG, concluding Antim did not raise a genuine issue of material fact as to whether Fred Meyer and CSG breached their duty to maintain the store premises in a safe manner. Antim asserts that she presented sufficient evidence to demonstrate that Fred Meyer and CSG breached their duty of care when an employee of CSG moved a floor mat in the store, causing Antim to slip and fall. Antim also argues that the district court erred when it denied her motion for reconsideration because the district court improperly considered testimony without proper foundation and improperly weighed the store manager's credibility as a witness.

A. Summary Judgment

We first note that summary judgment under I.R.C.P. 56(c) is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). When assessing a motion for summary judgment, all controverted facts are to be liberally construed in favor of the nonmoving party. Furthermore, the trial court must draw all reasonable inferences in favor of the party resisting the motion. G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808P.2d 851, 854 (1991); Sanders v. Kuna Joint School Dist., 125 Idaho 872, 874, 876 P.2d 154, 156 (Ct. App. 1994).

The party moving for summary judgment initially carries the burden to establish that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Eliopulos v. Knox, 123 Idaho 400, 404, 848 P.2d 984, 988 (Ct. App. 1992). The burdenmay be met by establishing the absence of evidence on an element that the nonmoving party will be required to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 1994). Such an absence of evidence may be established either by an affirmative showing with the moving party's own evidence or by a review of all the nonmoving party's evidence and the contention that such proof of an element is lacking. Heath v. Honker's Mini-Mart, Inc., 134 Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been established, the burden then shifts to the party opposing the motion to show, via further depositions, discovery responses or affidavits, that there is indeed a genuine issue for trial or to offer a valid justification for the failure to do so under I.R.C.P. 56(f). Sanders, 125 Idaho at 874, 876 P.2d at 156.

The United States Supreme Court, in interpreting Federal Rule of Civil Procedure 56(c), which is identical in all relevant aspects to I.R.C.P. 56(c), stated:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" ...


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