NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
CHERYL THOMPSON,

Plaintiff-Appellant,
v. WALMART INC., DBA Walm art #2050,

Defendant-Appellee. No. 21-15449 D.C. No. 2:19-cv-00323-JCM-BNW
MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Jam e s C. Mahan, District Judge, Presiding A rgued and Subm itted May 18, 2022 Pasadena, California Before: KLEINFELD, MILLER, and COLLINS, Circuit Judges. Thom pson tripped over a left-of-center wheel stop at the front of a handicapped parking space in a Wal-Mart parking lot and suffered serious injuries. She sued Wal-Mart for negligence in Nevada state court and Wal-Mart rem oved the case to federal court. The district court granted sum m ary judgm ent to Wal

# FILED
JUL 18 2022 M OLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.Mart on the ground that Wal-Mart owed Thom pson no duty regarding the wheel

stop. 1 The district court had jurisdiction pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441. We have jurisdiction under 28 U.S.C. § 1291. We reverse and
rem and.

I. Standard of Review “We review de novo a district court’s order granting sum m ary judgm ent. We m ust determ ine, viewing the evidence in the light m ost favorable to the
nonm oving party, whether there are any genuine issues of m aterial fact and whether the district court correctly applied the relevant substantive law. There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the m otion.” Lil’ Man in the Boat, Inc. v. City & Cnty. of San Francisco , 5 F.4th 952, 956 (9th Cir. 2021) (cleaned up). The relevant substantive law is that of negligence, which requires a showing of the four classic elem ents: duty, breach, causation, and dam ages. Foster v. Costco Wholesale Corp ., 128 Nev. 773, 777 (2012). Whether the defendant owes a duty to the plaintiff is a question of law. Id.

1 Though the court divided its analysis into two sections and stated that Thom pson failed to show both duty and breach, both sections of the court’s opinion addressed the elem ent of duty in substance. 2II. Analysis

The district court erred in relying on Nevada law setting out landowner duties that predated Foster
. F oster adopted the approach of the Restatem ent (Third) of Torts, under which “landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of dangerous conditions. The duty issue m ust be analyzed with regard to foreseeability and gravity of harm , and the feasibility and availability of alternative conduct that would have prevented the harm
. ” Id. at 781 (cleaned up). Under Foster , a landowner m ay have a duty of care even with respect to open and obvious hazards. Id. at 775. We conclude that, on this record, Wal-Mart had a duty to prevent tripping injuries caused by wheel stops in its parking lot. Thom pson’s expert witness offered unrebutted testim ony that wheel stops are foreseeable hazards and that reasonable m easures can be taken to reduce the risk of tripping over them
. Regarding breach, causation, and dam ages, Thom pson established a prim a facie case with evidence sufficient to entitle her to a jury trial. Her own testim ony, if believed, would establish that she tripped over a wheel stop that she did not notice, causing her substantial injuries. A jury could conclude from her testim ony and other evidence that the wheel stop m ight have been unnoticeable because of
3the particular circum stances of its placem ent—where it was, how dark it was, and

the positioning of the overhead light. A jury could further conclude that Wal-Mart could have reduced or elim inated the risk of people tripping over the wheel stop by, for example, rem oving it, placing it at the center of the parking spot, or im proving the lighting. Wal-Mart adm itted that it knew that wheel stops are tripping hazards and that it could have provided better lighting or painted the wheel stop a brighter color.
In granting sum m ary judgm ent in favor of Wal-Mart, the court relied on a diagramin a practice m anual depicting an acceptable handicapped parking space and found that Wal-Mart’s parking space looked “nearly identical.” But the sam e
m anual states that wheel stops should be “1 1/ 2 to 2 feet from the left lim it line of the parking stall,” whereas Thom pson’s expert opined that Wal-Mart’s wheel stop was “im m ediately adjacent to the parking stall lim it line” with an estim ated spacing of only “3 inches.” The significance of that difference is for the jury to determ ine. Nor could the practice m anual preclude a jury from finding for Thom pson.

4REVERSED AND REMANDED for proceedings consistent with this

m em orandum disposition.

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