Are Prior Falls Actually Discoverable?

There are three ways to prove a breach of a duty owed in a Nevada premises liability case: 1) the owner or occupant itself created the hazard at issue; 2) the owner or occupant had actual knowledge of the hazard; or 3) the owner or occupant had constructive knowledge of the hazard because it was a virtually continuous condition.  In many cases there is scant evidence available for the first two options, so constructive notice becomes the default option.  Typically plaintiffs then focus their discovery upon prior, similar events, arguing these events are relevant to constructive notice.  But are they?

Assume the typical slip/trip and fall fact pattern where a fall is caused by some temporary hazard on the fall like water.  For information to be discoverable, it must be “relevant to any party’s claim or defense.”[1]  Only if the information is relevant must the court conduct a proportionality analysis.

The Supreme Court of Nevada previously considered “notice evidence” in that circumstance.  Eldorado v. Graff concerned a slip and fall on a lettuce leaf on a ramp.[2] Eldorado concluded “that where a slip and fall is caused by the temporary presence of debris or foreign substance on a surface, which is not shown to be continuing, it is error to receive ‘notice evidence’ of the type here involved for the purpose of establishing the defendant’s duty.”[3]

Caballero v. Bodega Latina Corp. applied Eldorado to the interrogatory and request for production seeking information about prior falls.[4]  The plaintiff argued prior falls “‘placed Bodega on notice that its floors are overly slick when wet,’ ‘that Defendant’s cleaning policies and procedures are inadequate,’ and ‘helps to establish foreseeability of harm.’”  Caballero ultimately denied the motion to compel because the plaintiff had not

articulated a basis consistent with Eldorado Club, Inc. v. Graff for the Court to find that the discovery she seeks relating to prior slips and falls for the purpose of demonstrating, inter alia, how Bodega maintained the store, whether it knew or should have known about the alleged foreign substance that caused Caballero’s slip and fall, and whether it took appropriate measures to protect its customers is ‘relevant to any party’s claim or defense.’

In Smith v. Wal-Mart Stores, Inc. the plaintiff slipped on a piece of wet produce near the checkout registers [5]  She sought discovery pertaining to prior falls, but the court barred it, citing Eldorado.

Smith seeks information relating to slips and falls that occurred sometime during the three-year period before Smith’s fall. Like the prior slips and falls in Eldorado, the information Smith seeks could not serve to notify Walmart of the presence of the piece of wet, green produce—either cilantro or parsley—that Smith slipped on. As a result, Smith requests evidence that is “not reasonably calculated to lead to admissible evidence.”

The plaintiff argued the information was relevant to demonstrate “‘how Wal-Mart maintained the store and whether it knew or should have known about the alleged foreign substance that caused Plaintiff’s fall, and whether it took appropriate measures to protect its customers.’  This is the exact reason for which evidence cannot be proffered under Eldorado.”

Winfield v. Wal-Mart Stores was an order granting summary judgment.[6]  The plaintiff wanted to oppose summary judgment with evidence of prior accidents allegedly caused by wet substances on the floor.  The evidence was irrelevant and inadmissible.

The prior incident a customer reporting a fall at ‘the produce wet wall;’ the customer was found on the floor and ‘the mat in front of her was pushed up and turned over with evidence [sic] of being wet. Both the circumstances of the prior incident and Plaintiff’s fall suggest the presence of water on the floor, which is a temporary condition. Even accepting Plaintiff’s contention that her accident was caused by the presence of water and the lack of slip resistance flooring, the July 2012 incident would not establish notice of the claimed permanent condition of lack of slip resistance flooring.

[1] Rule 26(b)(1).

[2] 78 Nev. 507, 377 P.2d 174 (1962).

[3] Id., 377 P.2d at 176.

[4] 2:17-cv-00236, 2017 U.S. Dist. LEXIS 116869, 2017 WL 3174931 (D.Nev. July 25, 2017).

[5] 2:13-cv-1597, 2014 U.S. Dist. LEXIS 83005, 2014 WL 2770691 (D.Nev. June 17, 2014).

[6] No. 2:14-cv-1034, 2017 U.S. Dist. LEXIS 127639, 2017 WL 3476243, (D. Nev. Aug. 10, 2017).