from the District Court of the Fourth Judicial District of
the State of Idaho, Ada County. Hon. Lynn Norton, District
judgment of the district court is vacated and this
case is remanded for further proceedings consistent
with this Opinion.
Comstock & Bush, Boise, for Appellant. John A. Bush
Moffat, Thomas, Barrett, Rock & Fields, Boise, for
Respondent. Mindy M. Muller argued.
an appeal from a grant of summary judgment dismissing an
action originally brought by Diane Brooks
("Brooks") against Wal-Mart Stores, Inc.,
("Wal-Mart") based on injuries Brooks received when
she slipped and fell on a puddle of water near a Rug Doctor
self-service kiosk (the "kiosk") inside the
Wal-Mart on Overland Road in Boise, Idaho. Brooks based her
claims on premises liability and negligent mode of operation,
alleging Wal-Mart knew or should have known that water could
spill or leak onto the floor near the kiosk. Wal-Mart moved
for summary judgment, arguing that Brooks failed to establish
Wal-Mart had actual or constructive notice of the condition
that caused her injury. The district court agreed. Because we
find material issues of fact exist, we reverse the district
FACTUAL AND PROCEDURAL BACKGROUND
The rental process at Wal-Mart.
August 2011, Wal-Mart and Rug Doctor entered into a
Vendor Agreement which allowed Rug Doctor to place its carpet
cleaning machines into Wal-Mart stores and offer them for
rent to Wal-Mart customers. Through the Vendor Agreement,
Wal-Mart directed that the machines be offered to customers
through an automated self-serve rental process which required
no involvement from Wal-Mart's employees. The Agreement
purported, among other things, to place all responsibility
for a machine's safety upon Rug Doctor. Wal-Mart's
involvement in the process was merely that of providing a
location for the Rug Doctor machines to be rented, while
taking a fee for that service. Wal-Mart took no other direct
action in the rental/return process of its customers renting
Rug Doctor machines. Thus, the procedure was entirely
self-serve and unsupervised. In addition, no Wal-Mart
employee had a responsibility to interact with either Rug
Doctor's account manager, Spencer Hinkle
("Hinkle"), during his visits to the Wal-Mart store
to inspect Rug Doctor's equipment. That necessarily meant
that no employee would be responsible to inspect the Rug
Doctor machines to determine if they were clean or dirty upon
a rental return. Wal-Mart had no personal knowledge of the
process for renting a Rug Doctor machine, no Wal-Mart
employee was responsible to determine if a Rug Doctor machine
still had liquid in it when rented, or returned, and no
Wal-Mart employee was responsible to inspect the Rug Doctor
machines to determine if they leaked.
machines were serviced approximately every two weeks by
Hinkle. Hinkle testified that he serviced sixty-eight total
accounts in the Treasure Valley, nine of which were Wal-Mart
stores. The self-service mode of operation was utilized only
at Wal-Mart; in all other locations a store employee was
involved in the rent-and-return process.
Doctor split the rental and cleaning product fees with
Wal-Mart. In the typical arrangement with other stores,
Hinkle would provide training to store employees who were
involved in the rental and return process. Hinkle testified
that he provided no training to the Overland Wal-Mart
personnel, nor was he ever asked by anyone at that location
to provide training.
Wal-Mart's slip-and-fall policy.
adopted a slip-and-fall policy entitled "Slip, Trip and
Fall Guidelines," which was in place at the time Brooks
fell. This policy required employees to keep an eye out for
potential hazards in the areas they worked. Specifically,
Wal-Mart's maintenance associates were tasked with the
responsibility of performing "safety sweeps" of
high traffic areas and cleaning up spills throughout the day.
All other Wal-Mart associates were tasked with performing
visual "safety-sweeps" as they performed their
regular job duties in the areas that they were assigned.
Thus, Wal-Mart operated on a clean-as-you-go method with
employees directed to observe and remove spills or other
safety issues. Nevertheless, Wal-Mart did not keep records to
document the work done by its maintenance associates, nor did
its employees document any spills that they may have seen, or
that they may have cleaned up. As a result, there was no
documentation as to whether or where routine sweeps were
actually done, nor was there any evidence showing whether
spills were routinely located and cleaned. Wal-Mart
maintained through the testimony of its employees that a
spill had never occurred in front of or near the Rug Doctor
kiosk prior to Brooks' fall.
24, 2013, Brooks went to Wal-Mart on Overland Road in Boise,
Idaho to buy bags of wood chips for her yard. Brooks entered
the store through the main doors on the east end of the store
and asked a cashier for assistance. A cashier directed Brooks
to Customer Service. Brooks proceeded down the action alley-a
high traffic area/aisle which runs perpendicular to the cash
registers and connects the store's front two entrances-to
Customer Service. A Wal-Mart employee then escorted Brooks
back through the Action Alley towards the garden center.
While walking down the action alley, Brooks' left foot
started to slide, she slipped, and ultimately fell in the
area of the self-serve Rug Doctor and Primo Water kiosks. As
a result of her fall, Brooks suffered an injury to her left
knee that required surgery.
to her fall, Brooks did not see any liquid on the floor.
After her fall, Brooks saw the liquid and was lying in it
while Wal-Mart employees were assisting her. Neither Brooks
nor Wal-Mart employees could find the direct source of the
liquid; however, in a subsequent investigation, Wal-Mart
documented that Brooks slipped on a puddle of water that had
apparently originated from the Rug Doctor kiosk.
fall was captured on video. The surveillance video shows that
approximately seven minutes before Brooks' fall, a
Wal-Mart customer had rented a Rug Doctor machine and lifted
it into a shopping cart. The video does not show liquid
coming directly from the machine; however, that can be
related to the quality of the video and glare on the
flooring. The video does show the customer and another person
tilting the machine back-and-forth while lifting it into a
shopping cart near the precise location where Brooks fell.
The video also shows that a Wal-Mart employee and several
customers travelled within the same area or path that Brooks
travelled within the seven minutes time interval between when
the Rug Doctor machine was rented and Brooks' fall.
During this interval no customers reported any spills and no
employees noticed the hazard.
filed a complaint on November 19, 2014 alleging claims of
negligence against Wal-Mart for failure to maintain the
premises and to adequately warn Brooks of the dangerous
condition that caused her injury. In an amended complaint
filed on July 7, 2015, Brooks included a claim of negligent
mode of operation against Wal-Mart, Rug Doctor, Inc., and Rug
March 2, 2016, Wal-Mart filed a motion for summary judgment
seeking dismissal of Brooks' claims, arguing her
allegations were based on speculation rather than objective
evidence. Rug Doctor filed a similar motion on the same date.
On April 11, 2016, the district court granted summary
judgment in favor of Wal-Mart, but denied the same relief to
Rug Doctor. The court determined that Rug Doctor machines
could leak or spill liquid onto the floor of the Wal-Mart
store which would create a potentially dangerous condition,
finding that issues of fact remained as to whether it was
foreseeable that a Rug Doctor machine could cause an injury,
and whether Rug Doctor exercised reasonable care to avoid
Brooks' injury. The court also found that there were
triable issues of fact as to whether it was reasonably
foreseeable to Rug Doctor that the machine would or could
leak or spill liquid during the self-serve rental process.
The court, however, refused to apply these findings to
court found Brooks failed to offer evidence that established
Wal-Mart had actual or constructive notice of the dangerous
condition and that the liquid on the floor near the kiosk was
not a continuous or foreseeable hazard. Brooks timely filed a
motion for reconsideration on April 25, 2016, arguing that
because the district court found reasonable minds could
differ whether or not Rug Doctor's self-serve rental
process could create a hazardous condition in her claim
against Rug Doctor, then Wal-Mart, too, could be held liable
for choosing the operating method and introducing the
potentially hazardous rental process into its store. In its
order denying the motion for reconsideration, the district
court determined: (1) that Brooks failed to present evidence
that Wal-Mart was a direct and immediate cause of Brooks'
injury; (2) that Wal-Mart did not breach its general duty of
care; and (3) that Wal-Mart's decision to use the
self-service model was not what caused the liquid to be on
the floor. The district court dismissed Brooks' claims
against Wal-Mart with prejudice on October 17, 2016. Brooks
timely filed a notice of appeal.
STANDARD OF REVIEW
motion for summary judgment, the moving party bears the
burden of proving the absence of a material fact. Sadid
v. Idaho State University, 151 Idaho 932, 938, 265 P.3d
1144, 1150 (2011). "When considering whether the
evidence in the record shows that there is no genuine issue
of material fact, the trial court must liberally construe the
facts, and draw all reasonable inferences, in favor of the
nonmoving party." Liberty Bankers Life Ins. Co. v.
Witherspoon, Kelley, Davenport & Toole, P.S., 159
Idaho 679, 685, 365 P.3d 1033, 1040 (2016). If the moving
party has satisfied its burden, the non-moving party must
then come forward with sufficient admissible evidence
identifying specific facts that demonstrate the existence of
a genuine issue for trial. Wattenbarger v. A.G. Edwards
& Sons, Inc., 150 Idaho 308, 317, 246 P.3d 961, 970
(2010). Such evidence may consist of affidavits or
depositions, as well as other material based upon personal
knowledge which would have been admissible at trial.
Sherer v. Pocatello School District No. 25, 143
Idaho 486, 489, 148 P.3d 1232, 1236 (2006).
"Circumstantial evidence can create a genuine issue of
material fact . . . [and] [i]nferences that can reasonably be
made from the record are made in favor of the non-moving
party." ParkWest Homes, LLC v. Barnson, 154
Idaho 678, 682, 302 P.3d 18, 22 (2013) (citation omitted).
the evidence reveals no disputed issues of material fact,
then only a question of law remains, over which this Court
exercises free review." Lockheed Martin Corp. v.
Idaho State Tax Comm., 142 Idaho ...