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Robinson v. Lamb's Wilsonville Thriftway9/15/1999
Appeal from Circuit Court, Clackamas County.
Robert D. Herndon, Judge.
Argued and submitted May 10, 1999.
Affirmed.
Plaintiff appeals from summary judgment in this negligence action filed after she slipped and fell on the floor in defendant's store. Plaintiff contends that, despite her failure to submit admissible opposing evidence, summary judgment was improper, because defendant's evidence did not adequately contradict her claim. We view the evidence that was before the trial court, and all reasonable inferences from it, in the light most favorable to plaintiff, the non-moving party. Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). We affirm.
Plaintiff was a customer at defendant's grocery store. She was injured when she slipped and fell in a pool of liquid located on the floor. Her complaint alleged two theories of recovery available to plaintiffs in slip-and-fall cases: (1) that the defendant knew the substance was there and failed to use reasonable diligence to remove it, and (2) that the substance was on the floor so long that the defendant should, in the exercise of reasonable diligence, have discovered and removed it. Griffin v. K.E. McKay's Market of Coos Bay, Inc., 125 Or App 448, 451, 865 P2d 1320 (1993), rev den 319 Or 80 (1994). Eight months after plaintiff's complaint was filed, and after the parties had engaged in discovery, defendant filed a motion for summary judgment.
In support of summary judgment, defendant submitted affidavits from two store employees who were on duty when plaintiff fell. One of the affidavits was from the clerk to whom plaintiff reported the incident. That employee stated that she did not know the liquid was on the floor before she spoke with plaintiff and that she was not aware of any other employee who knew of the spill. The witness also stated that she did not know how the liquid got on the floor nor how long it was on the floor, and that she was not aware of any other employee with knowledge of either fact. The second affidavit was submitted by defendant's store manager, who stated:
"I never saw any liquid on the floor that day. I do not know how the liquid got on the floor, nor do I know how long it was on the floor. We are not aware of any store employees or anyone else who knows how the liquid got on the floor or how long it had been there."
Defendant also submitted excerpts from plaintiff's deposition testimony in which she acknowledged that she did not know if the spill was caused by an employee, whether any employee knew about it, or how long the liquid had been on the floor. Plaintiff's primary response was that, despite the fact that she did not produce admissible opposing evidence, defendant was not entitled to summary judgment because its submissions failed effectively to contradict an essential element of her theories of recovery.
The trial court granted defendant's motion for summary judgment. The court concluded that there were no genuine issues of material fact and that plaintiff
"misunderstands the moving parties' burden on a motion for summary judgment. Defendant has no duty to affirmatively prove or disprove the existence of material fact. * * * As in Dubry v. Safeway Stores, 70 Or App 183, [689 P2d 319 (1984), rev den 298 Or 470 (1985),] the relevant analysis is defendant's knowledge that the foreign material was on the floor. * * *
"* * * There is nothing in the admissible evidence from which an inference could be drawn as to how long the water was on the floor before plaintiff fell. Plaintiff's proof is inadequate as a matter of law."
This appeal followed.
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