Contreras v. Walgreens Drug Store #3837 – 12/28/2006

January 10, 2007

Arizona Court of Appeals Division Two Affirms Grant of Summary Judgment In Slip And Fall Case Where Defendant Had No Actual or Constructive Notice of Condition And Plaintiff Did Not Present Sufficient Evidence Under “Mode-Of-Operation” Rule.

David Contreras, an employee of a liquor distribution company, filed a negligence action against Walgreens for injuries sustained when he fell on Walgreens’ premises after slipping on a liquid spilled on the floor. The trial court granted summary judgment because Contreras presented no evidence that any Walgreens employee knew the spill was present and because Contreras failed to demonstrate the “mode of operation” rule applied to the case.

Division Two affirmed. The mode of operation rule “looks to a business’s choice of a particular mode of operation and not events surrounding the plaintiff’s accident. Under the rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise.” Here, Walgreens’ store manager testified in his deposition that the store was open twenty-four hours, and that “a couple of spills” a week occurred, but they were not “repetitive in nature.”
Division Two reasoned that it was “insufficient” for purposes of the mode of operation rule “to demonstrate that spills of some kind regularly occur; the business must be able to reasonably anticipate that a condition hazardous to customers will regularly occur.” Contreras’ evidence did not permit that inference because he provided “no evidence the liquid from spills occurring twice a week necessarily reached the floor nor that those spills occurred in the area of the store accessible to customers.”

Judge Brammer wrote the opinion; Judge Eckerstrom, Presiding Judge, and Judge Espinosa concurred.