DIANE BROOKS v. WAL MART STORES INC (2018)

PETITION FOR REHEARING

Supporting brief to be filed within 14 days pursuant to I.A.R. 42(b).

Defendant Wal-Mart Stores, Inc. (“Wal-Mart”) respectfully petitions this Court for partial rehearing of 2018 Opinion No. 36 (“Op.”) pursuant to Idaho Appellate Rule 42 for two reasons:

A. To address factual statements in section III.B.1 of the Opinion that are not supported by facts in the record and contradicted by other facts not addressed, and

B. To clarify the holding in section III.B.1 of the Opinion in light of well-established premises liability law.

Wal-Mart does not petition this Court for a rehearing on sections III.B.2(b), III.B.3, or III.B.4.

The issue decided by the district court and raised on appeal by Appellant Diane Brooks (“Brooks”) was whether Brooks presented evidence creating a material issue of fact for the jury to decide if Wal-Mart had constructive notice of a dangerous condition, i.e., liquid on the floor of its Overland Road store in Boise, Idaho, at the time and place of Brooks' slip-and-fall accident. The district court's analysis focused solely on whether Wal-Mart had actual or constructive notice of a dangerous condition, not whether Wal-Mart exercised due care. In addressing the district court's decision, the Court focused its analysis not on notice, but rather on evidence related to whether Wal-Mart “exercised due care when it adopted an automated self-serve rental process for the Rug Doctor machines.” Op. at 8. The Court held that there are triable issues of fact for the jury because there is evidence that Wal-Mart “placed a product that could potentially leak fluid in the busiest part of the store” and because Wal-Mart “refused to request any help from the manufacturer.” Op. at 9.

The Court's holding is premised on unsubstantiated factual statements that Wal-Mart purposefully failed to inquire regarding the Rug Doctor machine's potential to leak and thereby ignored safety concerns when it contracted with Rug Doctor for a self-service kiosk to be in Wal-Mart's stores. See Op. at 7. There is no record evidence to support this conclusion; rather, there is record evidence to the contrary found in the agreement Wal-Mart signed with Rug Doctor that specifically addresses safety of the kiosk and machines. Further, record evidence not discussed in the Opinion shows that Wal-Mart had several different processes in place to maintain the safety of the premises, thus keeping it reasonably free from hazards that all products in the store have the potential to create, not just Rug Doctor machines.

The Court's holding creates confusion because it suggests a new rule of law inconsistent with established case law. First, the holding suggests that in the invitee context, the test for premises liability is what the retailer did to inquire or obtain information about the potential for a product to create a hazard in the store. Op. at 8. Based on the holding, the issue is whether Wal-Mart had constructive notice of the source of the dangerous condition, e.g., the Rug Doctor kiosk, not the condition itself, in contradiction of longstanding Idaho law. Second, the holding suggests that retailers can be liable for not inquiring as to risks of self-serve products in the store, regardless of what the retailer would have learned. Op. at 8-9. The implication is that retailers have a new duty to inquire of all vendors, suppliers, and manufacturers and understand all potential risks, even de minimus risks. Third, the holding suggests that whether a condition is an isolated incident is irrelevant if a plaintiff can prove that a retailer had a self-service product with an unquantified potential to create the hazard. Op. at 9, 11. This holding appears to conflict with settled law and a recent decision, authored by Justice Horton, holding that “[f]or a nonrecurring or isolated incident, the invitees must show actual or constructive notice of the specific condition.” Shea v. Kevic Corp., 156 Idaho 540, 548, 328 P.3d 520, 528 (2014). Justice Jones pointed out the holding in Shea, but the majority did not address it. See J. Jones dissent at 14-15. Retailers are now left to speculate what level of a potential to create a hazard leads to liability in an isolated incident case. See id. at 15.

The foregoing concerns and uncertainties reach Idaho retailers of all sizes, regardless of their resources, types of products stocked or dispensed, methods of operation, or knowledge of the potential of products to create hazards on their premises. Accordingly, a partial rehearing is appropriate to address the issues outlined within this Petition.

Wal-Mart will address more fully in a separate memorandum to be filed within 14 days the matters identified above for rehearing.

By

Mindy Muller, ISB No. 798. Attorneys for Defendant/Respondent Wal-Mart Stores, Inc.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 10th day of May, 2018, I caused to be served a true copy of the foregoing PETITION FOR REHEARING by the method indicated below, and addressed to each of the following:

John A. Bush

COMSTOCK & BUSH

199 N. Capitol Blvd., Suite 500

Post Office Box 2774

Boise, Idaho 83701-2774

Facsimile (208) 344-7721

jabush@comstockbush.com

Attorneys for Plaintiff/Appellant

[x] U.S. Mail, Postage Prepaid

☐ Hand Delivered

☐ Overnight Mail

☐ Facsimile

Mindy Muller