FILED
NOT FOR PUBLICATION
OCT 24 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABBY RIOS, Nos. 16-16875
17-15476
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-01592-KJD-GWF
WALMART INC.,
MEMORANDUM*
Defendant-Appellee.
Appeals from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted October 17, 2018, as to No. 16-16875
Submitted October 17, 2018, as to No. 17-15476**
San Francisco, California
Before: THOMAS, Chief Judge, and KLEINFELD and GRABER, Circuit Judges.
In this slip-and-fall case, Plaintiff Abby Rios appeals the judgment for
Defendant Wal-Mart on her negligence claim, which the district court entered after
overturning the jury’s verdict for Plaintiff. Reviewing de novo, Wilks v. Reyes, 5
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that No. 17-15476 is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
F.3d 412, 415 (9th Cir. 1993) (articulating the standard for general verdicts);
Affordable Hous. Dev. Corp. v. City of Fresno, 433 F.3d 1182, 1193 (9th Cir.
2006) (articulating the standard for special verdicts), we reverse and remand with
instructions to reinstate the verdict in Plaintiff’s favor.
The district court erred by holding that the jury’s answers to the first two
questions on the verdict form conflicted with each other. Whether the jury
returned a general verdict or a special verdict, the district court’s task was to
determine "not whether the verdict necessarily makes sense under any reading, but
whether it can be read in light of the evidence to make sense." White v. Ford
Motor Co., 312 F.3d 998, 1005 (9th Cir. 2002) (emphases added); see also Floyd v.
Laws, 929 F.2d 1390, 1396 (9th Cir. 1991) (holding that the court has a duty under
the Seventh Amendment to harmonize the jury’s answers if possible). Under one
reasonable view of the evidence, Defendant’s maintenance employee could have
prevented Plaintiff’s fall had he returned as soon as possible to clean the aisle that
he skipped on his route through the store—the aisle where Plaintiff fell. The
entrance to the aisle was crowded with customers when he first passed it, but
quickly cleared up.
Thus, even though the spill had been on the floor for only two minutes and
twelve seconds when Plaintiff fell, the jury reasonably could have found that the
2
spill existed for long enough that Defendant had constructive notice of it because
the maintenance employee could have or should have discovered the spill. See
Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322–23 (Nev. 1993) (per curiam)
(holding that the question whether a grocery store had constructive notice of a
grape on the floor, on which the plaintiff slipped in circumstances similar to those
in this case, was a question of fact for the jury). Contrary to Defendant’s
assertions, no evidence established that the maintenance employee left the area
where Plaintiff fell to attend to an urgent matter elsewhere in the store. The
employee acknowledged in his deposition that he could not remember where he
went after leaving the crucial area; he merely speculated that, if he went in a
certain direction, he must have done so because he saw something that required his
immediate attention.
REVERSED and REMANDED with instructions to reinstate the jury’s
verdict, enter judgment for Plaintiff, and reinstate the order (Docket Entry No. 212)
taxing Plaintiff’s costs against Defendant.
3
Abby Rios v. Wal-Mart Stores, Inc.
Combined Opinion