* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

APR 28 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSEPHINE MARTINEZ,

Plaintiff-Appellant,

v.

PAYLESS DRUG STORES

NORTHWEST, a Maryland

corporation, dba Payless Drug Stores,

Defendant-Appellee.

No. 97-4048

(D.C. No. 95-CV-954-W)

(D. Utah)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
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Plaintiff Josephine Martinez appeals from an order of the district court

granting defendant’s motion for summary judgment. We affirm.

Ms. Martinez commenced this diversity negligence action seeking damages

from defendant after she was hit in the face with a ball while she was shopping in

defendant’s store. The district court granted summary judgment for defendant

holding that defendant could not be held liable for Ms. Martinez’ injuries because

no reasonable jury could find that Ms. Martinez had established the elements

necessary to meet the statutory requirements for negligence under Utah law.

On appeal, Ms. Martinez argues that the district court erred in refusing to

hear her Fed. R. Civ. P. 56(f) motion to obtain additional discovery before the

court ruled on the summary judgment motion. She also asserts the district court

erred in granting defendant’s motion for summary judgment because genuine

issues of material fact exist and the case should have gone to a jury.

We review a district court's denial of a Rule 56(f) motion for abuse of

discretion. See Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260,

1264 (10th Cir. 1984). The party seeking Rule 56(f) relief must submit an

affidavit explaining why it cannot present facts which would preclude the entry of

summary judgment without further discovery. See Committee for the First

Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992). 
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Here, counsel made an oral motion requesting Rule 56(f) relief at the

hearing on defendant’s motion for summary judgment. An oral motion made at

the summary judgment hearing does not meet the rule’s requirements. See

Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 277 (9th Cir. 1988)

(informal oral request for more time to conduct discovery does not comply with

Rule 56 requirements); see also Committee for the First Amendment, 962 F.2d at

1522 (counsel’s advocacy does not suffice for evidence or fact for purposes of

Rule 56(f)); Radich v. Goode, 886 F.2d 1391, 1394-95 (3d Cir. 1989) (same). 

Because the Rule 56(f) motion was made as an informal oral request without

submission of a supporting affidavit, the district court did not abuse its discretion

in declining to entertain the motion.

Ms. Martinez also asserts the district court erred in granting summary

judgment for defendants because genuine issues of material fact are present which

preclude the entry of summary judgment. 

We review the entry of summary judgment de novo, drawing

all reasonable inferences in favor of the nonmovants. Summary

judgment is appropriate only when the moving party shows there is

no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. To avoid summary

judgment, the nonmovant must make a showing sufficient to establish

an inference of the existence of each element essential to the case. 

The nonmovant may not rest upon mere allegation or denials of his

pleadings, but must set forth specific facts showing that there is a

genuine issue for trial.
-4-

Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (quotations and citations

omitted). 

The incident at issue occurred one evening while Ms. Martinez was

shopping at the store with her grandson. Ms. Martinez stated that she saw two

girls throw a ball one time as she entered the toy section of the store. 

Approximately ten to fifteen minutes later, Ms. Martinez was hit in the face with

a small rubber ball similar to the one she had seen the girls throw earlier. The

girls were seen leaving the store in a hurry. Ms. Martinez and her grandson are

the only eye witnesses as the girls have never been identified.

Under Utah law, a store owner can be held liable for the injuries incurred

by one of its patrons in two situations. A store owner can be found liable if the

store owner had actual or constructive knowledge of a temporary hazardous

condition and sufficient time has passed after discovery of the condition so that

the store owner, in the exercise of reasonable care, should have remedied the

condition. See Schnuphase v. Storehouse Markets, 918 P.2d 476, 478 (Utah

1996). A store owner can also be found liable for injuries incurred by one of its

patrons if the store owner created a hazardous condition of a permanent nature. 

See id. In such instances, the store owner is deemed to know of the condition and

the injured party need not show notice and time to remedy. See id.
1

In her motion for reconsideration to the district court and to this court, Ms.

Martinez urges that a reasonable inference would be that the girls had been

throwing the ball before she entered the store. She, therefore, concludes it should

be inferred that they had been throwing the ball for twenty-five minutes, which

she asserts is sufficient time for defendant to have discovered them and to have

taken steps to remedy the situation.

-5-

Ms. Martinez is attempting to establish defendant’s liability, alternatively,

under both of these theories. The undisputed evidence is that Ms. Martinez saw

two girls throw a ball once when she entered the toy aisle of the store. She was

hit by a ball ten to fifteen minutes later. Under the first theory, Ms. Martinez

asserts that defendant should have known the two girls were throwing the ball

back and forth in the store because a reasonable inference would be that the girls

had been throwing the ball continuously for at least fifteen minutes.1

 She

supports this inference by citing the “common human experience” that teenagers

will continue to play until they are forced to stop because they have broken

something or they have hurt someone. Appellant’s Br. at 15-16. Ms. Martinez

also cites to the fact that up to eight employees could have been working that

evening, a number she asserts is sufficient so that the girls’ actions should have

been noticed. Ms. Martinez contends that a reasonable conclusion would be that

defendant should have discovered the girls and stopped the ball throwing.

We do not agree that this conclusion is supported by reasonable inferences. 

Evidence that leaves the element of causation in the area of speculation,
-6-

conjecture and surmise cannot establish negligence. See, e.g. Clark v. Farmers

Ins. Exch., 893 P.2d 598, 601 (Utah Ct. App. 1995) (if proximate cause of injury

is left to speculation, claim must fail as matter of law). Ms. Martinez is asking us

to speculate that the girls had been playing a game of catch continuously for

fifteen to twenty-five minutes. An equally plausible speculation would be that the

girls had thrown the ball only once on impulse, an impulse which they gave into

again ten to fifteen minutes later. While we are required on a motion for

summary judgment to view the facts and reasonable inferences that may be drawn

from those facts in the light most favorable to the opposing party, we are not

required to engage in speculation favorable to that party. We cannot agree that

Ms. Martinez’ conjectures amount to reasonable inferences.

In the alternative, Ms. Martinez asks us to hold that the manner in which

the balls were displayed in the toy area was inherently dangerous. If the display

were inherently dangerous, the issue becomes whether defendant “took reasonable

precautions to protect customers against the dangerous condition it created.”

Canfield v. Albertsons, Inc., 841 P.2d 1224, 1227 (Utah Ct. App. 1992). 

A store owner is not a guarantor of his business invitees’ safety. See

Schnuphase, 918 P.2d at 478; see also Martin v. Safeway Stores Inc., 565 P.2d

1139, 1140 (Utah 1977). Rather, the store owner “is charged with the duty to use

reasonable care to maintain . . . his establishment in a reasonably safe condition
-7-

for his patrons.” Preston v. Lamb, 436 P.2d 1021, 1023 (Utah 1968). 

Ms. Martinez made no showing as to the general standards of safety employed by

stores with toy departments or displays of balls. She presented no evidence either

that the manner in which the balls were displayed was inherently dangerous or

that defendant had not used reasonable care in the maintenance of the store. Ms.

Martinez did not present evidence sufficient to support a finding of liability under

either negligence theory. 

Ms. Martinez filed a Fed. R. Civ. P. 59(e) motion to alter or amend the

court’s judgment. We review a district court’s ruling on a Rule 59(e) motion

under an abuse of discretion standard. Phelps v. Hamilton, 122 F.3d 1309, 1324

(10th Cir. 1997).

Ms. Martinez submitted an affidavit from a former employee of defendant

in support of her Rule 59(e) motion. This affidavit only shows that, as far as the

affiant knew, employees were seldom available to help customers; the toy section

of the store could not be observed by the cashiers; children liked to play with the

toys; and after the store closed, employees had to spend about an hour reshelving

merchandise that had been moved during the day. This does not amount to

evidence that the ball display was inherently dangerous. The district court did not

abuse its discretion in denying Ms. Martinez’ Rule 59(e) motion.
-8-

The judgment of the United States District Court for the District of Utah is

AFFIRMED.

Entered for the Court

Michael R. Murphy 

Circuit Judge