IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PAULA SMITH an individual and

LESTER SMITH an individual,

Plaintiffs,

v.

TARGET CORPORATION, a foreign

business corporation,

Defendant.

3:15-CV-02356-BR

 

OPINION AND ORDER 

RYAN M. LEE

7327 S.W. Barnes Road

#515

Portland, OR 97225

(503) 423-7519 

Attorney for Plaintiffs

WILLIAM H. STOCKTON

Brisbee & Stockton

139 N.E. Lincoln Street

P.O. Box 567

Hillsboro, OR 97124

(503) 648-6677

Attorneys for Defendant

1 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 1 of 15
BROWN, Judge.

This matter comes before the Court on Defendant Target

Corporation’s Motion (#13) for Summary Judgment. For the reasons

that follow, the Court GRANTS Defendant’s Motion.

BACKGROUND

The following facts are taken from Plaintiffs’ Complaint,

Defendant’s Concise Statement of Material Facts, and the parties’

summary-judgment materials, and are undisputed unless otherwise

noted.

Plaintiff Paula Smith and her daughter Taylor Smith entered

the Defendant’s store located at 10775 S.W. Beaverton Hillsdale

Highway in Beaverton, Oregon, at approximately 4:45 p.m. on

November 27, 2013. The store was busy because it was the day

before Thanksgiving. 

While walking down one of the store’s aisles, Paula Smith

stepped on a small, hard object and fell. Neither Paula Smith

nor her daughter saw or could identify the object that Paula

Smith stepped on. Target employee Daniela Hopkins saw Paula

Smith fall and came to her assistance immediately. Hopkins

called a “code green” on her store walkie-talkie and alerted

store supervisors that a guest had been injured. In less than

one minute several supervisors arrived at Paula Smith’s location. 

A supervisor called an ambulance, and other supervisors brought

2 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 2 of 15
Paula Smith water and a pillow. One supervisor blocked off the

aisle where Paula Smith was located so other store patrons could

not walk through the area. Target employees searched the aisle

and floor, including underneath the base decks and in the

corners, in an effort to locate the thing that Paula Smith

slipped on, but they did not find anything. Paramedics arrived

at Paula Smith’s location within ten minutes of Paula Smith’s

fall. Ultimately Paula Smith was taken by ambulance to the

hospital accompanied by her daughter. Neither Paula Smith nor

any members of her family returned to the Target store for four

to six weeks after her fall.

 On November 16, 2015, Paula Smith and her husband Lester

Smith filed an action in Multnomah County Circuit Court against

Target in which they allege state-law claims for negligence and

loss of consortium. Plaintiffs served Target with the Complaint

on November 25, 2015. 

On December 17, 2015, Defendant removed the matter to this

Court on the basis of diversity jurisdiction.

On July 5, 2016, Defendant filed a Motion for Summary

Judgment as to both of Plaintiffs’ claims. The Court took the

matter under advisement on September 12, 2016.

STANDARDS

Summary judgment is appropriate when “there is no genuine

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Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 3 of 15
dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R.

Civ. P. 56(a). The moving party must show the absence of a

dispute as to a material fact. Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and show there is a genuine dispute as to

a material fact for trial. Id. "This burden is not a light one

. . . . The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue." In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court must draw all

reasonable inferences in favor of the nonmoving party. Sluimer

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary

judgment cannot be granted where contrary inferences may be drawn

from the evidence as to material issues." Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A “mere

disagreement or bald assertion” that a genuine dispute as to a

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Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 4 of 15
material fact exists “will not preclude the grant of summary

judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

1989)). When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive

evidence than otherwise would be necessary." LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted). 

The substantive law governing a claim or a defense

determines whether a fact is material. Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

DISCUSSION

Defendant moves for summary judgment on the ground that

Plaintiffs have failed to establish Paula Smith’s claim for

negligence.

Under Oregon law 

an invitee who slips on a foreign substance in an

occupant's store must prove that: (1) the

substance was placed there by the occupant; 

(2) the occupant knew the substance was on the

floor and failed to remove it; or (3) the

substance had been on the floor for a sufficient

amount of time, such that the occupant should have

discovered and removed it. 

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Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 5 of 15
Laygui v. Wal-Mart Stores, Inc., No. 6:13–cv–00327–AA, 2014 WL

3695536, at *2 (D. Or. July 24, 2014)(citing Van Den Bron v. Fred

Meyer, Inc., 86 Or. App. 329, 331 (1987)). Defendant asserts

Paula Smith has not established the item on which she slipped was

placed there by Defendant, that Defendant knew the item was on

the floor and failed to remove it, or that the item had been on

the floor for a sufficient amount of time that Defendant should

have discovered and removed it.

Defendant notes Paula Smith stated in a letter to

Defendant’s insurance carrier, testified at deposition, and

alleged in her Complaint that she did not see the object that she

stepped on, she does not know what object she stepped on, and she

did not have any idea how long the object had been on the floor. 

Specifically, in a letter to Defendant’s insurance company Paula

Smith stated in pertinent part:

Per our discussion this morning, I just wanted to

reiterate that on Wednesday, November 27, 2013 I

was shopping in the Target store at 10775 SW

Beaverton Hillsdale Hwy in Beaverton, Oregon

. . . . I stepped down on something with my right

foot. It made me fall. I don't know what I

stepped on. The sensation was hard and slick

against the surface of the floor. Not wet.

Suppl. Decl. of William Stockton, Ex. 2 at 1. In their Complaint

Plaintiffs allege “Plaintiff PAULA SMITH stepped on a small hard

object. . . . The size of the object and the crowds prevented

Plaintiff PAULA SMITH from seeing it.” Compl. at ¶ 5. 

Similarly, at deposition Paula Smith testified:

6 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 6 of 15
I did step down on something with my right foot. 

It did make me fall and it was hard. It was

raised above the ground a little, you know, not

like a lot but an amount and it was very slick

against the surf ace of the floor and it was not

wet.

* * *

I am not 100 percent certain what I stepped on. 

As I said, it was hard. It was raised a little

bit. It was a smallish thing. The sensation is

very, very clear in my mind.

* * *

I didn't know what I stepped on. I am not 100

percent sure what I stepped on, but I am very

certain about ·the sensation of what it was.

Decl. of William Stockton, Ex. A at 7-8. Paula Smith also

testified:

Q. Did you ever see the object?

A. No.

Q. Did you ever see any object on the floor as

you approached the area where you fell?

A. No.

Q. Did you ever see any object on the floor

after you fell?

A. No. Once I fell, I knew I was hurt very

badly. 

Q. And the object, whatever the object was, do

you have any idea of how long it might have

been on the floor because of some

circumstance?

A. No.

Q. Do you have any idea of how it came to be on

7 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 7 of 15
the floor?

A. No.

Stockton Decl., Ex. A at 9. 

In addition, the record also reflects Defendant’s employees

did not find any object on the floor during their search of the

area immediately after Paula Smith fell, Paula Smith’s daughter

did not see what Paula Smith slipped on, and no object has ever

been identified as the one that caused Paula Smith to fall. 

Specifically, Taylor Smith noted:

On November 27, 2013 I went to Target with my

mother twice. . . . We came back to Target [the

second time] to get my prescription and a movie. 

My mother and I were walking next to each other

down the aisle between the cards and the

children's department. Suddenly, she wasn't next

to me. I looked down and she was on the ground. 

I was shocked. . . . I was so upset I couldn't

even move. . . . I do not know why she fell. It

happened so fast. One second she was beside me

and then she was on the floor. I did not look to

see if she may have stepped on something, or why

she fell, because I was so worried about her. 

Stockton Decl., Ex. C at 1. It is, therefore, undisputed that

Taylor Smith also did not see or discover the object that caused

Paula Smith to fall. Moreover, Target employee Daniela Corina

Hopkins testified at deposition that she was “pretty close” to

Paula Smith when she fell, she saw Paula Smith fall to the ground

“quickly” and “immediately approached her,” she immediately

notified store supervisors that Paula Smith had fallen, and “less

than a minute” after the notification supervisors began to

8 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 8 of 15
arrive. Stockton Decl., Ex. B at 4-5. Target employees blocked

off the aisle and conducted a thorough search of the area, but

they did not find anything that could have caused Paula Smith to

slip and fall. 

Paula Smith concedes neither she nor her daughter saw what

Paula Smith slipped on. Paula Smith, however, relies on her

deposition testimony; her Declaration; and the Declaration of

Mark Ososke, an investigator, to establish her negligence claim.

In her deposition Paula Smith testified although she does not

know what she stepped on, “[i]t would be in keeping with like

something plastic or those . . . little hooks that they put on

hats and things to put them on the display that are raised up a

little bit that are plastic. It was something hard like that but

it was just so slick against the floor but it wasn't wet.” 

Stockton Decl., Ex. A at 8. Paula Smith’s statement, however, is

based on mere speculation because she testified unequivocally

that she does not know what she slipped on.

Paula Smith also relies on her Declaration in which she

testifies she “returned to the Target store . . . after my injury

. . . in an effort to determine what I had slipped on . . . an

object consistent with the sensation I clearly felt under my foot

just before I fell.” Decl. of Paula Smith at ¶ 2. She also

states: 

I located plastic hat hangers used by Target to

display hats for sale. The hangers are plastic

9 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 9 of 15
pieces that are attached to the hats. I have

observed the hats hung by these hangers near the

area where I slipped and fell.

I did not see the object I slipped on at the time

I fell, but based upon my observation of the

feeling of the object under my foot, looking and

feeling the hat hangers later at Target, and their

proximity to where I fell , I believe I slipped on

one of Target's hat hangers.

Decl. of Paula Smith at ¶¶ 3-4. Her testimony, however, does not

establish beyond mere speculation that the item on which she

slipped was a hat hanger placed on the floor by Defendant, that

Defendant knew the item was on the floor and failed to remove it,

or that the item had been on the floor for a sufficient amount of

time that Defendant should have discovered and removed it. For

example, Paula Smith does not specify in her Declaration when she

returned to the Target store to conduct her investigation. At

deposition, however, Paula Smith testified she did not return to

the Target store for “at least a month or six weeks” after her

fall, and none of her family members returned to the Target store

before that point. Paula Smith’s investigation, therefore, was

at least four to six weeks after her fall, which is too remote in

time from her fall to establish what item Plaintiff slipped on.

In addition, as Defendant notes, although Paula Smith

testifies the item she slipped on felt like it was “in keeping

with” the hat hooks, she does not indicate she investigated or

attempted to distinguish the feel of numerous other objects that

could be “in keeping” with the feel of the object she slipped on

10 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 10 of 15
and that would not be unexpected in a crowded retail store the

evening before Thanksgiving such as coins, keys, buttons,

jewelry, or any number of other small, hard objects.

Finally, Paula Smith relies on the Declaration of her

investigator Mark Ososke. Ososke testifies he went to the Target

store on August 7 and 8, 2016, which is nearly three years after

Paula Smith’s fall. Ososke testifies he observed approximately

65% of the aisles had debris such as price tags, “plastic

hangers, cardboard containers, merchandise, garbage and other

debris” on the floor. Decl. of Mark Ososke at ¶¶ 2-3. Ososke’s

testimony, however, does not shed any light on the state of the

aisle where Paula Smith fell three years earlier. In particular,

Ososke’s observations do not make it any more likely that the

item Paula Smith slipped on three years earlier was put there by

Defendant or had been on the floor long enough for Defendant’s

employees to have noticed it and failed to remove it. Oregon

courts have made clear that “in the absence of proof from which a

jury can draw an inference of how long the substance was on the

floor, there is no basis to find defendant negligent.” Weiskopf

v. Safeway Stores, Inc., 271 Or. 630, 632 (1975) (collecting

cases). In addition, “there must be some evidence of how long

the offending material was on the floor” in order to establish

liability. Dubry v. Safeway Stores, Inc., 70 Or. App. 183, 188

(1984). Moreover, to the extent that Ososke’s testimony is meant

11 - OPINION AND ORDER

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to establish how often Defendant maintained the area where Paula

Smith fell, it is well-established under Oregon law that “[t]he

regularity of maintenance to the area is irrelevant to

determining how long the substance was on the floor.” Cardenas

v. Wal–Mart Stores, Inc., No. 3:13–cv–01725–ST, 2014 WL 2949332,

at *4 (D. Or. June 27, 2014)(citing Diller v. Safeway Stores,

Inc., 274 Or. 735, 738 (1976)). When the evidence does not show

the “spill preexisted inspection, the evidence has no bearing on

whether it was reasonable for the inspecting employee to discover

the spill.” Id.

Courts have concluded in cases under similar circumstances

that the plaintiffs have not established negligence claims. For

example, in Laygui v. Wal-Mart Stores, Inc., the plaintiff was

shopping in one of the defendant’s stores when she slipped and

fell. No. 6:13–cv–00327–AA, 2014 WL 3695536, at *1 (D. Or. 

July 24, 2014). The plaintiff “did not recall seeing or stepping

in any foreign substance” in the defendant’s store, but after her

fall an employee mentioned the plaintiff had “blue stuff” on her

shoe that “could have been detergent.” Id. The employee went to

the detergent aisle and “noticed a small amount of detergent on

the floor, underneath a shelf, with no foot indentation in it. 

He proceeded to wipe the area clean.” Id. The plaintiff filed a

negligence claim against the defendant, who, in turn, moved for

summary judgment. The court granted the defendant’s motion

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noting:

[T]he record is inadequate to create a genuine

issue of material fact. . . . Plaintiff offered

no direct evidence indicating that, at any point

prior to her fall, defendant's employees actually

knew that detergent, or any other substance, had

been spilled on the floor. Nor is there any

direct evidence that plaintiff, in fact, slipped

on a substance on the floor. Moreover, plaintiff

provided no evidence demonstrating there was an

earlier spill that defendant cleaned up, poorly or

otherwise.

Id., at *2. As to whether the object was on the floor for so

long that the defendant should have discovered it, the court

noted:

Plaintiff . . . proffers no evidence concerning

how long the detergent, or any other substance,

had been on the floor prior to her fall. Without

evidence of when the spill occurred, it is equally

as probable that the detergent leaked immediately

before plaintiff's fall as it was that the spill

occurred two hours prior. Weiskopf, 271 Or. at

632. Thus, there is no proof from which a jury

could infer how long the detergent had been on the

floor or whether a scheduled safety sweep could

have or should have remedied the spill.

Id., at *3. The court noted the case before it was not like

those in which the plaintiff survived summary judgment “by making

reference to the nature of the substance which caused his fall,

to show that the substance had been on the floor for a

substantial period of time.” Id. In other words, it was not a

situation in which it was clear that the object that caused the

fall had been on the floor for an extended period. The court

ultimately concluded: 

13 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 13 of 15
[G]iven the record before it, a jury would be

forced to speculate as to whether defendant's

actions or inactions were the impetus of

plaintiff's fall, as well as whether one of

defendant's employees knew of an earlier spill and

failed to properly clean it up. Yet “Oregon

courts do not permit liability findings rooted in

[this type of] conjecture.”

Id., at *3 (quoting Feazle–Hurt v. Target Corp., No. 3:12–cv–

00997–AC, 2013 WL 5797601, at *4–5 (D. Or. Oct. 28, 2013)).

Paula Smith does not proffer any nonspeculative evidence as

to what she slipped on or how long the unknown item had been on

the floor before her fall. “Speculation and guesswork are not

permissible means by which a jury may find negligence.” Laygui,

2014 WL 3695536, at *3 (citing Griffin v. K.E. McKay's Market of

Coos Bay, Inc., 125 Or. App. 448, 450–52 (1993)). 

On this record the Court concludes Paula Smith has not

established a genuine dispute of material fact exists as to

whether the item on which Paula Smith slipped was placed there by

Defendant, that Defendant knew the item was on the floor and

failed to remove it, or that the item had been on the floor for a

sufficient amount. 

Accordingly, the Court grants Defendant’s Motion for Summary

Judgment as to Paula Smith’s negligence claim. 

The Court notes Lester Smith’s claim for loss of consortium

is “derivative of PAULA SMITH’s claim for damages,” and Lester

Smith’s claim arises solely from Paula Smith’s claim for

negligence. Because the Court has granted summary judgment for

14 - OPINION AND ORDER

Case 3:15-cv-02356-BR Document 26 Filed 10/11/16 Page 14 of 15
Defendant as to Paula Smith’s negligence claim, the Court also

grants summary judgment for Defendant as to Lester Smith’s claim

for loss of consortium. The Court, therefore, dismisses this

matter with prejudice in its entirety.

CONCLUSION

For these reasons, the Court GRANTS Defendant’s Motion (#13)

for Summary Judgment and DISMISSES this matter with prejudice.

IT IS SO ORDERED.

DATED this 11th day of October, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

15 - OPINION AND ORDER

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