F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 28 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPHINE MARTINEZ,
Plaintiff-Appellant,
v. No. 97-4048
(D.C. No. 95-CV-954-W)
PAYLESS DRUG STORES (D. Utah)
NORTHWEST, a Maryland
corporation, dba Payless Drug Stores,
Defendant-Appellee.
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.
*
This order and judgment is not binding precedent, except under the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.
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.
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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.
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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,
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.
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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
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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.
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The judgment of the United States District Court for the District of Utah is
AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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