UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

ROBERT L. HILL, an individual Case No. 3:16-cv-00450-AC

Plaintiff, OPINION AND ORDER

v.

WAL-MART STORES, INC., a Delaware

corporation, WAL-MART STORES EAST,

LP, a limited partnership of Delaware,

Defendants.

_______________________________________

ACOSTA, Magistrate Judge:

Introduction

Plaintiff Robert L. Hill (“Hill”) filed a negligence lawsuit in the Circuit Court of the State

of Oregon for the County of Multnomah against defendants Wal-Mart Stores, Inc., and Wal-Mart

Stores East, LP, (collectively “Wal-Mart”) to recover for injuries sustained when he slipped and fell

in Wal-Mart’s Store Number 2552, located in southeast Portland, Oregon. Wal-Mart timely

Page 1 - OPINION AND ORDER [CAC]
removed Hill’s claims to this court based on diversity jurisdiction pursuant to 28 U.S.C. §

1332(a)(1).

Currently before the court is Wal-Mart’s motion for summary judgment on all of Hill’s

claims. Because no triable issues of fact exist as to whether Wal-Mart’s acts or omissions

constituted negligence, Wal-Mart’s motion is granted.1

Background

On or about February 28, 2014, Hill entered Wal-Mart’s Store Number 2552 in southeast

Portland, Oregon, and purchased some merchandise. (Compl., (ECF No. 1-2 Ex. B), ¶ 2). Hill used

the Men’s restroom before leaving the store. (Id.). Walking with a crutch under one arm due to a

prior knee injury, Hill slipped on the restroom’s wet floor and sustained injuries. (Hill Dep.

49:3–49:8; 55:23–56:5).

Prior to slipping, Hill observed a gentleman and a young boywashing their hands. (Hill Dep.

58:5–58:17). The paper towel holder by the sink was empty, but there was an additional paper towel

holder across the room. (Hill Dep. 49:12–49:20). When finished washing their hands, the gentleman

and the young boy dripped water on the floor as they walked to the additional paper towel holder to

dry their hands. (Hill Dep. 57:14–58:24). Similarly, after Hill washed his hands he walked to the

additional paper towel holder across the room to dry his hands. (Hill Dep. 49:12–49:20,

58:18–58:20). Hill dried his hands and then, while leaving the restroom, slipped on the wet floor. 

(Hill Dep. 50:7–50:12). Hill is not clear whether his crutch or his foot slipped on the wet floor. (Hill

Dep. 59:25–60:10).

1The parties have consented to jurisdiction bya United States Magistrate Judge in accordance

with 28 U.S.C. § 636(c)(i).

Page 2 - OPINION AND ORDER [CAC]
When Hill first entered the restroom he noticed water spots on the restroom floor. (Hill Dep.

55:6–55:7). The restroom floor was not flooded with water, but there were water spots on the floor. 

(Hill Dep. 57:8–57:10). At his deposition, Hill was shown an exhibit that he identified as photos of

water spots on the restroom floor. (Hill Dep. 56:20–57:10). Hill could not say whether the water

spots in the photos were the water spots that the gentleman and the young boy dripped on the floor. 

(Hill Dep. 58:5–58:17). Hill also could not say how long the spots in the photos were on the floor

before Hill slipped. (Hill Dep. 59:19–59:21).

Legal Standard

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as

to anymaterial fact and the movant is entitled to judgment as a matter of law.” FED.R.CIV.P. 56(a). 

Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad,

58 F.3d 439, 441 (9th Cir. 1995).

The moving party has the burden of establishing the absence of a genuine dispute of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of

a genuine issue of material fact, the nonmoving partymust go beyond the pleadings to identify facts

that show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary judgment

by relying on the allegations in the complaint, or with unsupported conjecture or conclusory

statements. Hernandez v. Spacelabs Med.., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus,

summary judgment should be entered against “a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will bear

the burden of proof at trial.” Celotex, 477 U.S. at 322.

The court must view the evidence in the light most favorable to the nonmoving party. Szajer

Page 3 - OPINION AND ORDER [CAC]
v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011). All reasonable doubt as to the existence

of a genuine dispute of material fact should be resolved against the moving party. Hector v. Wiens,

533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summary

judgment is inappropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir.

1981).

Discussion

Oregon law governs this diversity action. “[I]n an ordinary diversity case where the state law

does not run counter to a valid federal statute or rule of court, and usually it will not, state law . . . 

which reflects a substantial policy of the state, should be followed.” Alaska Rent-A-Car, Inc. v. Avis

Budget Grp., Inc., 738 F.3d 960, 973 (9th Cir. 2013) (quoting Alyeska Pipeline Serv. Co. v.

Wilderness Soc’y, 421 U.S. 240, 259 n.31 (1975)). 

Under Oregon premises liability law, the duty that a property owner owes to an entrant

depends on whether the entrant is an invitee, licensee, or trespasser. Walsh v. C & K Market, Inc.,

171 Or. App. 536, 539 (2000). Here, neither party disputes that, at the time of the incident, Hill was

a business “invitee” of Store Number 2552. Hill entered the store at Wal-Mart’s implied invitation

to shop and potentially purchase Wal-Mart’s merchandise. See Parker v. Hult Lumber & Plywood

Co., 260 Or. 1, 8 (1971) (defining “invitee” as “one who comes upon the premises at the occupier's

invitation, express or implied, upon business which concerns the occupier”).

Storekeepers, such as Wal-Mart, have a duty to “make their propertyreasonablysafe for their

invitees.” Hughes v. Wilson, 345 Or. 491, 497 (2008). As a general rule, they are obligated to

exercise due diligence to discover unsafe conditions on their premises and to warn invitees of

those risks. Woolston v. Wells, 297 Or. 548, 557–58 (1984). A storekeeper may be held liable for

Page 4 - OPINION AND ORDER [CAC]
injuries an invitee sustains from dangers that the storekeeper knew about or, in the exercise of due

care, should have known about. Mickel v. Haines Enters., Inc., 240 Or. 369, 371–72 (1965). 

Specifically regarding slip-and-fall cases, the Oregon Supreme Court has held that the occupant of

a business property may be liable to an invitee who falls on a foreign substance on the business's

floor, if the plaintiff can prove:

(1) that the substance was placed there by the occupant, or (2) that the

occupant knew that the substance was there and failed to use reasonable

diligence to remove it or (3) that the foreign substance had been there for

such a length of time that the occupant should, by the exercise of reasonable

diligence, have discovered and removed it.

Pribble v. Safeway Stores, Inc., 249 Or. 184, 187 (1968) (quoting Cowden v. Earley, 214 Or. 384,

387 (1958)) (emphasis added).

Hill’s opposition to summary judgment rests entirely on the third theory of liability,

contending that Wal-Mart reasonably should have known the water was on the ground and removed

it. (Pl.’s Resp. to Mot. Summ. J., (ECF No. 25), at 2). Viewing Hill’s evidence in the light most

favorable to Hill, Hill’s evidence is insufficient to create a genuine dispute of material fact

precluding summary judgment against him.

Oregon case law recognizes that “[i]n the absence of proof from which a reasonable inference

can be drawn as to how long the substance was on the floor, there is no basis for a finding of

negligence.” Diller v. Safeway Stores, Inc., 274 Or. 735, 739 (1976). Plaintiff’s evidence cannot

establish merely an equal probability that the substance that caused defendant to fall was present for

two seconds or two hours. Dubry v. Safeway Stores, Inc., 70 Or. App. 183, 188 (1984). In essence,

“[t]he factfinder cannot be allowed to substitute conjecture or speculation for reasonable inferences

based on evidence.” Id.

Page 5 - OPINION AND ORDER [CAC]
In Dubry v. Safeway Stores, Inc., the Oregon Court of Appeals held that where plaintiff

slipped on a dry and compressed leafy material but there was no evidence as to the leafy material’s

previous character and location, or evidence of how the leafy material may have arrived at the

location, it was equally probable that the leafy material was “on the floor for two seconds or for two

hours.” Id. at 189. The court granted the defendant’s motion for summary judgment where the

defendant attached the plaintiff’s deposition to the defendant’s motion for summary judgment, the

plaintiff filed no additional evidence, and the plaintiff otherwise failed to show through the pleadings

and the plaintiff’s deposition that a reasonable factfinder could “conclude that the leaves were on the

floor for a sufficient period of time that defendant, in the exercise of reasonable diligence should

have discovered and removed them.” Id.; see also Reed v. Jackson Cnty, 105 Or. App. 24, 32 (1990)

(noting that, under Dubry, a movant’s initial burden of production on summary judgment is low in

slip-and-fall cases given that “the injured person or witnesses to the injury are the only likely

observers of conditions at the time of the injury and . . . [i]f favorable evidence [going to the floor’s

condition] is unavailable to a slip and fall victim within a short time after the accident, it almost

certainly never will be”).

A number of recent federal decisions applying Oregon law have granted summary judgment

in slip-and-fall cases where the plaintiff could not establish how long the substance was on the floor. 

See Taylor v. Thrifty Payless, Inc., No. 3:16–CV–00474–HZ, 2017 WL 1987244, at *4 (D. Or. May

12, 2017); Smith v. Target Corp., 3:15–CV–02356–BR, 2016 WL5939154, at *4–5 (D. Or. Oct. 11,

2016); Manning v. Victoria’s Secret Stores, LLC, No. 3:15-cv-00693-HZ, 2016 WL 1599805, at *4

(D. Or. April 19, 2016), appeal docketed, No. 16–35377 (9th Cir. May 5, 2016); Laygui v. Wal-Mart

Stores, Inc., No. 6:13–cv–00327–AA, 2014 WL 3695536, at *3–4 (D. Or. July 24, 2014); Cardenas

Page 6 - OPINION AND ORDER [CAC]
v. Wal-Mart Stores, Inc., No. 3:13–cv–01725-ST, 2015 WL 2949332, at *3–6 (D. Or. June 27,

2014); Feazle-Hurt v. Target Corp., No. 3:12–cv–00997–AC, 2013 WL5797601, at *6 (D. Or. Oct.

28, 2013). For example, in Taylor v. Thrifty Payless, Inc., the court granted the defendant’s motion

for summary judgment where the plaintiff slipped on a large puddle of brownish liquid at the end

of a store aisle but could not establish when the spill occurred. 2017 WL 1987244, at *1, *5. The

plaintiff tried to establish a genuine dispute of material fact based on testimony in her declaration

and deposition, and the testimony of the store manager and an employee. Id. The plaintiff argued

that “because she did not hear or see anything while she was in the store indicating that the cashier

notified anyone that there was a spill, Defendant must have been notified of the spill long before

Plaintiff arrived at the store the first time.” Id. The plaintiff also argued that because the manager

and an employee “testified that someone other than Plaintiff first told Defendant about the spill, the

spill must have been reported before her fall.” Id. However, these arguments, and others, were

“based on impermissible guesswork and speculation.” Id. The plaintiff “fail[ed] to carry her

evidentiary burden” as construing all logical inferences in the plaintiff’s favor “produce[d] nothing

more than the ‘equal probability’ that [Oregon case law has] rejected as insufficient to defeat

summary judgment in a slip-and-fall case.” Id. at *6.

In Manning v. Victoria’s Secret Stores, LLC, the court granted the defendant’s motion for

summary judgment where the plaintiff slipped on a glossy marketing sign that was on the floor of

defendant’s store but the plaintiff could not establish how long the sign was on the floor. 2016 WL

1599805, at *4. The record did not show how long the sign was on the floor, except for testimony

by one of the defendant’s employees that she had passed through the area where the sign fell about

ten minutes before the incident and did not notice the sign or anything else on the ground. Id. The

Page 7 - OPINION AND ORDER [CAC]
court found such evidence “insufficient to create a question of fact as to whether the sign was on the

ground for such a period of time that a Victoria’s Secret employee should have discovered it with

reasonable diligence.” Id. “Even if a jury found incredible [the employee’s] claim that she was in

the area of Manning’s fall approximately ten minutes before the incident, Manning’s failure to

produce any other evidence about the length of time the sign was on the floor [was] fatal to her

claim.” Id.

This court granted summary judgment for the defendant storeowner in Feazle-Hurt v. Target

Corp., 2013 WL 5797601, at *6. In Feazle-Hurt, the plaintiff allegedly slipped in the defendant’s

store on a tag that had detached from a children’s toy. Id. at *2. The plaintiff did not notice the tag

before or after the fall but several of the defendant’s employees believed that the tag was involved

in the incident. Id. Similar to Manning, the only testimony regarding the duration of time that the

tag was on the floor was a “Target employee’s statement that he did not see the tag when he walked

through the area ten minutes prior to the incident . . . .” Id. at *6. Further, the tag’s condition

“provid[ed] no evidence that allowed a reasonable inference of the length of time it had been on the

floor.” Id.; see also Audas v. Montgomery Ward, Inc., 79 Or. App. 718, 720–21 (1986) (finding that

where plaintiff slipped on a melted frozen dairysubstance, and there was evidence that the substance

had crusted over and begun to dry, plaintiff’s claim survived summary judgment given that “the jury

could reasonably infer, based on common knowledge, that a liquid substance would have to be on

the floor more than a short time to assume that appearance”). “It [was] just as probable that the tag

fell to the floor immediately before Feazle-Hurt’s accident as it [was] that the tag had been there for

a lengthy period of time.” Feazle-Hurt, 2013 WL 5797601, at *6. Given that the plaintiff did not

establish how long the tag had been on the floor, the plaintiff’s claims were dismissed. Id.

Page 8 - OPINION AND ORDER [CAC]
Similarly, as Hill has failed to establish how long the water that he slipped on was on the

floor, his claim is dismissed. Hill stated in his deposition that he noticed water on the bathroom

floor when he entered the bathroom. Hill notes that there were no paper towels in the dispenser next

to the sink when he arrived in the bathroom, forcing people to walk across the bathroom with wet

hands. He argues that “[t]he paper towel dispenser could have been empty for an hour, causing

bathroom patrons to walk over with dripping hands.” (Pl.’s Resp. to Mot. for Summ. J., (ECF No.

25) at 4) (emphasis added). 

But, while the empty paper towel holder provides a possible explanation for why there was

water on the ground, there is no evidence as to when the paper towel holder became empty. The

paper towel holder could have been empty for an hour — as Hill suggests — or it could have been

empty for five minutes. Hill’s argument merely layers one uncertainty on top of another. 

Furthermore, assuming Hill slipped on the water that the gentleman and the young boy dripped on

the floor rather than the water Hill saw when he entered the bathroom, Wal-Mart cannot be held

liable for failing to discover such water. See Pavlik v. Albertson’s Inc., 253 Or. 370, 375 (1969)

(noting that where plaintiff slipped on a leaf “it would have been to no avail” to show that the leaf

had been on the ground for two minutes).

Rather than establish how long the relevant water was on the floor, Hill argues that he does

not “have to prove anything” on summary judgment. (Pl.’s Resp. to Mot. for Summ. J. at 3). In

particular, Hill cites Robinson v. Lamb’s Wilsonville Thriftway, 332 Or. 453, 462 (2001), arguing

that on summary judgment Wal-Mart’s submission of Hill’s deposition alone is insufficient to shift

the burden of production to Hill. But Robinson is inapplicable to the case at bar. The ruling in

Robinson is based on an outdated version of Oregon’s summary judgment standard, rather than the

Page 9 - OPINION AND ORDER [CAC]
current federal summary judgment standard. Here, the federal summary judgment standard applies. 

See Cuprite Mine Partners LLC v. Anderson, 809 F.3d 548, 554 (9th Cir. 2015) (finding that where

federal courts are sitting in diversity “the ‘procedural aspects of summary judgment’ are governed

by the Federal Rules of Civil Procedure, and ‘the law of the forum controls the substantive issues’”). 

As noted above, if the moving party shows the absence of a genuine issue of material fact, the

nonmoving party must go beyond the pleadings to identify facts that show a genuine issue for trial. 

Celotex Corp., 477 U.S. at 324; see also Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210

F.3d 1099, 1106 (9th Cir. 2000) (“in appropriate cases, a moving party may carry its initial burden

of production by showing that the nonmoving party does not have enough evidence to carry its

ultimate burden of persuasion at trial”). Where plaintiffs have argued in Oregon slip-and-fall cases

that defendants should have discovered a hazardous substance on their business’s floor and

defendants have moved for summary judgment, federal courts have insisted that plaintiffs produce

evidence establishing how long the hazardous substance was on the floor. See, e.g., Taylor, 2017

WL 1987244, at *4 (finding that where the only evidence in the record relating to how long the

hazardous substance was on the floor required speculation, “the plaintiff’s failure to produce any

other evidence about the length of time the sign was on the floor was fatal to her claim”); Smith,

2016 WL 5939154, at *5 (“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.”); Laygui, 2014 WL

3695536, at *3 (“Plaintiff, however, proffers no evidence concerning how long the detergent, or any

other substance, had been on the floor prior to her fall.”).

Moreover, Robinson itself was based on an outdated Oregon summary judgment standard.

332 Or. at 460. Robinson was on appeal when the Oregon legislature approved of a new summary

Page 10 - OPINION AND ORDER [CAC]
judgment standard. Id. Robinson ruled that the old state summary judgment standard applied

because the new summary judgment standard was not intended to apply to actions on appeal when

the new summary judgment standard went into effect; the new summary judgment standard applied

only to actions pending in trial courts at the time of the new standard’s effective date and to those

actions filed after the standard’s effective date. Id. at 460. This is significant because, under the new

standard, “the burden to produce evidence on any issue raised in the motion falls on the party

opposing the summary judgment motion if that party has the burden of persuasion at trial.” JAL

Constr., Inc. v. Friedman, 191 Or. App. 492, 496 n.4 (2004). Had Robinson applied the new

standard, the plaintiff, as the party with the burden of persuasion at trial, would have had to produce

evidence going to whether defendant was aware of the clear liquid or should have been aware of the

clear liquid. In short, Robinson is inapplicable to the case at bar.

Viewing the evidence in the light most favorable to Hill, the evidence merely establishes an

equal probability that the water that caused him to fall was present for two seconds or two hours. 

As such, Hill’s evidence is insufficient to create an issue of material fact precluding summary

judgment.

Conclusion

The court GRANTS Wal-Mart’s motion (ECF No. 21) for summary judgment.

IT IS SO ORDERED.

DATED this 5th day of June, 2017.

 /s John V. Acosta 

JOHN V. ACOSTA

 United States Magistrate Judge

Page 11 - OPINION AND ORDER [CAC]