Cheryl Thompson v. WALMART INC., DBA Walmart 2050

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL THOMPSON,
Plaintiff-Appellant,
v.
WALMART INC., DBA Walmart #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
James C. Mahan, District Judge, Presiding
Argued and Submitted May 18, 2022
Pasadena, California
Before: KLEINFELD, MILLER, and COLLINS, Circuit Judges.
Thompson 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 removed
the case to federal court. The district court granted summary judgment to Wal-
FILED
JUL 18 2022
MOLLY 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.

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Mart on the ground that Wal-Mart owed Thompson 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
remand.
I. Standard of Review
“We review de novo a district court’s order granting summary judgment.
We must determine, viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of material 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 motion.” 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 elements: duty, breach, causation, and damages. 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
Thompson failed to show both duty and breach, both sections of the court’s
opinion addressed the element of duty in substance.
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II. Analysis
The district court erred in relying on Nevada law setting out landowner
duties that predated Foster. Foster adopted the approach of the Restatement
(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 must 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 may 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. Thompson’s expert witness offered unrebutted testimony
that wheel stops are foreseeable hazards and that reasonable measures can be taken
to reduce the risk of tripping over them.
Regarding breach, causation, and damages, Thompson established a prima
facie case with evidence sufficient to entitle her to a jury trial. Her own testimony,
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 testimony
and other evidence that the wheel stop might have been unnoticeable because of
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the particular circumstances of its placement—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 eliminated the risk of people tripping over the wheel stop
by, for example, removing it, placing it at the center of the parking spot, or
improving the lighting. Wal-Mart admitted 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 summary judgment in favor of Wal-Mart, the court relied on a
diagram in a practice manual depicting an acceptable handicapped parking space
and found that Wal-Mart’s parking space looked “nearly identical.” But the same
manual states that wheel stops should be “11/2 to 2 feet from the left limit line of
the parking stall,” whereas Thompson’s expert opined that Wal-Mart’s wheel stop
was “immediately adjacent to the parking stall limit line” with an estimated
spacing of only “3 inches.” The significance of that difference is for the jury to
determine. Nor could the practice manual preclude a jury from finding for
Thompson.
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REVERSED AND REMANDED for proceedings consistent with this
memorandum disposition.
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