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Brooks v. Wal-Mart Stores, Inc.

Supreme Court of Idaho

July 30, 2018

DIANE BROOKS, Plaintiff-Appellant,
WAL-MART STORES, INC., a foreign corporation doing business in Idaho, Defendant-Respondent.

          Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Lynn Norton, District Judge.

         The 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 argued.

          Moffat, Thomas, Barrett, Rock & Fields, Boise, for Respondent. Mindy M. Muller argued.

          BEVAN, Justice.

         This is 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 court's decision.


         A. The rental process at Wal-Mart.

         In August 2011[1], 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.

         The 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.

         Rug 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.

         B. Wal-Mart's slip-and-fall policy.

         Wal-Mart 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.

         C. The accident.

         On July 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.

         Prior 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.

         Brooks' 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.

         D. Procedural background.

         Brooks 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 Doctor, LLC.

         On 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 Wal-Mart.

         The 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.


         A. Summary judgment.

         In a 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).

         "If 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 ...

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