Rucker v. Quiktrip

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MELBA RUCKER, Plaintiff/Appellant,

v.

QUIKTRIP CORPORATION, Defendant/Appellee.

No. 1 CA-CV 21-0550
FILED 7-5-2022

Appeal from the Superior Court in Maricopa County
No. CV2020-001900
The Honorable John R. Hannah, Jr., Judge

AFFIRMED

COUNSEL

Zapata Law PLLC, Chandler
By Julio M. Zapata
Co-Counsel for Plaintiff/Appellant

Merchant Law Firm, PLLC, Phoenix
By Bimal R. Merchant
Co-Counsel for Plaintiff/Appellant

Burch & Cracchiolo, PA, Phoenix
By Theodore A. Julian, Jr., Daryl Manhart
Counsel for Defendant/Appellee
 RUCKER v. QUIKTRIP
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge D. Steven Williams and Chief Judge Kent E. Cattani joined.

B A I L E Y, Judge:

¶1 Melba Rucker appeals the superior court’s summary
judgment in favor of QuikTrip Corporation (“QuikTrip”) on her negligence
claim. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Rucker slipped and fell in the parking lot of a QuikTrip store
on a rainy day in February 2018. She sued QuikTrip, alleging she slipped
on an “oily substance” that QuikTrip either did not warn of or failed to
promptly clean up.

¶3 QuikTrip moved for summary judgment, contending Rucker
could not show any unreasonably dangerous condition existed or that
QuikTrip had notice of any such condition. Rucker opposed the motion
and separately moved for sanctions, alleging that QuikTrip had only
preserved one hour of video surveillance (that included the accident and
time immediately preceding and following the accident) and had
“destroyed surveillance video that would show [it] had notice of the oily
parking spot hours before [she] slipped and fell.”

¶4 The superior court granted QuikTrip’s motion, finding that
Rucker could not show QuikTrip had constructive notice of the alleged spill
because “[t]here is no evidence . . . that shows how long the spill was there.”
The court denied Rucker’s sanctions motion as moot, finding that “[t]he
missing video would not help and, at best, it impeaches the manager about
the inspection of the parking lot.”

¶5 Rucker timely appealed following the entry of final judgment.
We have jurisdiction under Article 6, Section 9, of the Arizona Constitution
and Arizona Revised Statutes section 12-2101(A)(1).

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DISCUSSION

I. The Court Did Not Err in Granting Summary Judgment to QuikTrip.

¶6 We review de novo whether summary judgment is warranted,
including whether genuine issues of material fact exist and whether the
superior court properly applied the law. Am. Furniture Warehouse Co. v.
Town of Gilbert, 245 Ariz. 156, 159, ¶ 9 (App. 2018). We view the evidence
in the light most favorable to Rucker as the non-moving party. Normandin
v. Encanto Adventures, LLC, 246 Ariz. 458, 460, ¶ 9 (2019). Summary
judgment should be granted only “if the facts produced in support of [a]
claim . . . have so little probative value, given the quantum of evidence
required, that reasonable people could not agree with the conclusion
advanced by the proponent of the claim.” Orme Sch. v. Reeves, 166 Ariz. 301,
309 (1990).

¶7 Rucker was a business invitee to whom QuikTrip owed a duty
of care. See Stephens v. Bashas’ Inc., 186 Ariz. 427, 430 (App. 1996). QuikTrip
therefore was obligated to exercise reasonable care to make its premises safe
for her use. McMurtry v. Weatherford Hotel, Inc., 231 Ariz. 244, 252, ¶ 23
(App. 2013). Reasonable care “includes an obligation to discover and
correct or warn of unreasonably dangerous conditions that the possessor of
the premises should reasonably foresee might endanger an invitee.” Id.
(citations omitted).

¶8 The occurrence of a fall on business premises does not by itself
establish negligence. Contreras v. Walgreens Drug Store No. 3837, 214 Ariz.
137, 138, ¶ 7 (App. 2006). Rucker instead must prove QuikTrip had notice
of and did not reasonably respond to a dangerous condition. Walker v.
Montgomery Ward & Co., 20 Ariz. App. 255, 258 (1973). To establish notice,
she must show

1) that the foreign substance or dangerous condition [wa]s the
result of defendant’s acts or the acts of his servants, or

2) that defendant had actual knowledge or notice of the
existence of the foreign substance or dangerous condition, or

3) that the condition existed for such a length of time that in
the exercise of ordinary care the proprietor should have
known of it and taken action to remedy it (i.e., constructive
notice).

Id. (citations omitted).

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A. Rucker Did Not Show QuikTrip Had Constructive Notice.

¶9 Rucker does not contend QuikTrip caused the spill. She
instead contends summary judgment was improper because genuine issues
of material fact remain as to whether QuikTrip had constructive notice of
the spill. Specifically, she cites deposition testimony from QuikTrip’s
Arizona Rule of Civil Procedure (“Rule”) 30(b)(6) designee to contend
QuikTrip acknowledged (1) that vehicles sometimes leave behind liquids
in parking spaces, (2) that it had specific cleaning products for oil and
grease spots, and (3) that wet surfaces can create slippery conditions. None
of these facts pertain to whether QuikTrip had constructive notice of this
particular spill.

¶10 Rucker contends QuikTrip’s Rule 30(b)(6) designee, Kevin
Bergman, admitted, or at least was willing to accept, that a vehicle leaked
oil in the parking space at issue “sometime between 9 a.m. and noon.” And
although Bergman did not recall finding any oil in the parking space where
Rucker fell during his inspection that day, there is evidence that a QuikTrip
employee cleaned the area after Rucker fell and that QuikTrip blocked off
the parking space the next day.

¶11 QuikTrip notes, however, Rucker’s testimony that she did not
see any oil or grease on the ground before she fell and that she did not look
down even though the ground was wet from the rain. Additionally, video
footage still shots Rucker included in her motion for sanctions show the
area of the fall but do not show any visible oil or grease spots.

¶12 It is undisputed that Rucker fell at 12:09 p.m. As such,
according to Rucker’s only evidence of oil or grease on the ground
(Bergman’s potential testimony setting a range of time for a possible spill),
the allegedly dangerous condition might have existed (if at all) for as little
as ten minutes. And given Rucker’s testimony that she did not see any spill
on the ground, and the absence of visible oil or grease spots in the video
footage, Bergman’s testimony would at best lead to speculation by a jury as
to how long a spill was there, something our supreme court rejected as
improper in a similar slip-and-fall case involving a pebble on a stairway:

The pebble could have been deposited ten seconds before the
plaintiff fell, or ten minutes, or two hours and ten minutes.
There is no evidence from which the jury could infer that one
period of time was more reasonable than any other. Only if it
had been there for a sufficient length of time for the
defendant, in the exercise of reasonable care, to find and

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remove it, could the defendant be found negligent.
Submission of these facts to the jury would require the jury to
guess whether the pebble had been on the stairway for a
sufficient length of time. This cannot be permitted.

McGuire v. Valley Nat’l Bank of Phoenix, 94 Ariz. 50, 53-54 (1963). The
superior court did not err in finding that Rucker’s proposed evidence could
not establish constructive notice.

B. The Mode-of-Operation Rule Does Not Apply.

¶13 Rucker also argues we should apply the “mode-of-operation
rule,” which can “relieve[ ] the plaintiff of the initial burden of proving
notice in cases where the occurrence of a transitory hazardous condition
can reasonably be anticipated from the store owner’s method of doing
business.” Bloom v. Fry’s Food Stores, Inc., 130 Ariz. 447, 449 (App. 1981);
accord Contreras, 214 Ariz. at 139, ¶ 8. The rule “looks to a business’s choice
of a particular mode of operation and not events surrounding the plaintiff’s
accident.” Chiara v. Fry’s Food Stores of Ariz., Inc., 152 Ariz. 398, 400 (1987),
abrogated on other grounds by Orme Sch., 166 Ariz. at 305. To prevail, Rucker
must show (1) QuikTrip reasonably could anticipate the hazardous
condition would occur on a regular basis, and (2) QuikTrip did not exercise
reasonable care under the circumstances. See Shuck v. Texaco Refin. & Mktg.,
Inc., 178 Ariz. 295, 297 (App. 1994).

¶14 Rucker presented evidence showing that QuikTrip knew
customer vehicles sometimes leak in parking spaces and that, given the
large number of customers who visit the store each day, leaks can
frequently occur. But the frequency of oil leaks, standing alone, does not
trigger the mode-of-operation rule. See Contreras, 214 Ariz. at 140, ¶ 12
(“[A]pplication of the mode-of-operation rule focuses not on whether a spill
occurs at some interval, be it twice a week or twice a month, but on whether
spills create a condition hazardous to customers with sufficient regularity
to be considered customary, usual, or normal.” (citation omitted)).

¶15 Moreover, Rucker offered no evidence to show QuikTrip
failed to take reasonable steps to mitigate any such risk. See Shuck, 178 Ariz.
at 297. By way of comparison, in Shuck, the plaintiff contended she slipped
and fell on an oil spot outside of a gas station and convenience store. Id. at
296. As in this case, evidence was presented to establish that the store “had
a set procedure for handling oil spills.” Id. But the Shuck plaintiff also
presented evidence that the store did not follow that procedure; rather than
clean up the spill, someone had placed a blue paper towel over it. Id. The

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plaintiff also presented evidence that store employees had not followed
general procedure and inspected the premises on the day of the fall. Id. at
297. Based in part on that evidence, the court reversed a directed verdict
for the defendant and remanded for a new trial. Id. at 300.

¶16 Here, in contrast, there is no evidence to show QuikTrip
deviated from its typical procedures for handling oil spills—or that those
procedures were deficient or deviated from a more rigorous industry
standard of care followed by other gas station operators. The undisputed
record instead shows QuikTrip inspected the parking area in the morning
on the day Rucker fell. And although Rucker contends QuikTrip “does not
even recall whether the subject parking stall was actually cleaned . . . prior
to the fall,” Bergman testified he did not recall finding any oil spots during
his inspection that morning. We therefore conclude that Rucker cannot
prevail under the mode-of-operation rule.

II. The Court Did Not Abuse Its Discretion in Finding No Spoliation.

¶17 Rucker also challenges the denial of her motion for sanctions
for spoliation of evidence. “Spoliation is the destruction or material
alteration of evidence.” Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 267,
¶ 1 (2010). “[L]itigants have a duty to preserve evidence which they know,
or reasonably should know, is relevant in the action, is reasonably
calculated to lead to the discovery of admissible evidence, is reasonably
likely to be requested during discovery and/or is the subject of a pending
discovery request.” McMurtry, 231 Ariz. at 260, ¶ 51 (quoting Souza v. Fred
Carries Contracts, Inc., 191 Ariz. 247, 250 (App. 1997)). We review spoliation
rulings for an abuse of discretion. See Souza, 191 Ariz. at 249.

¶18 Citing McMurtry, Rucker contends “there is inherent
prejudice in destruction of evidence that deprives a party of the best
evidence on an issue.” In McMurtry, a hotel guest fell to her death after
climbing out of a third-story window. 231 Ariz. at 247-48, ¶¶ 2-3. The
deceased victim’s representative requested an adverse inference instruction
based on the hotel’s destruction of surveillance video footage from the
evening of the fall. Id. at 248-49, ¶ 6. The court denied that request and
subsequently granted summary judgment to the hotel. Id. at 249, ¶¶ 7, 9.

¶19 On appeal, the plaintiff contended the destroyed video would
have “shown the obviousness of [the decedent’s] intoxication” and argued
the jury should have been “allowed to consider the loss of this key evidence
and draw any inferences it chooses to draw from that loss.” Id. at 259, ¶ 48.
The record established that the hotel’s computer system automatically

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deleted surveillance video after approximately fourteen days, but (1) the
hotel owners reviewed the video before it was deleted, and (2) they believed
the police had made a complete copy of the video footage before it was
deleted, which they had not. Id. at ¶ 49. Although we vacated summary
judgment on other grounds, we remanded for further consideration of
whether an adverse inference instruction was appropriate:

As soon as [the hotel] learned of Lucario’s death on the Hotel
premises, the possibility of a lawsuit should have been
apparent. And, because there was a strong likelihood of
subsequent litigation and the footage would be relevant
thereto, the Hotel had an obligation to take reasonable
measures to preserve the recording. Moreover, the Hotel’s
belief that the entire recording was available through the
police was wrong and was not verified by the Hotel.

Id. at 260, ¶ 52.

¶20 This case differs from McMurtry in two important respects.
First, QuikTrip preserved and disclosed one hour of surveillance video that
included Rucker’s entire visit to the store, her fall, and “store employees
responding to the incident and [Rucker] driving away from the store.”
Second, as previously noted, the still shots Rucker included in her motion
for sanctions confirm that an oil spot cannot be seen in the video footage.
Indeed, she does not dispute QuikTrip’s contention that “it is impossible to
tell from the video if there was any oil or grease on the ground in the
parking stall where [she] slipped.” As such, any additional video would
not have been probative as to when any spill occurred or whether QuikTrip
had or should have had notice of it before Rucker fell.

¶21 Rucker further contends the five factors identified in Souza
merit an adverse inference instruction. Those factors are (1) whether the
evidence was willfully or volitionally destroyed, (2) whether the case
involves a failure to comply with a court order, (3) whether the opposing
party had access to the destroyed evidence before its destruction, (4) the
degree of prejudice resulting from the spoliation, and (5) whether the court
considered the availability of less extreme sanctions before applying more
extreme ones. 191 Ariz. at 250-52.

¶22 The fifth factor does not apply because the court did not issue
sanctions. The second and third factors are undisputed, as there was no
pending court order regarding the video footage and Rucker had no access
to the video before it was automatically deleted.

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¶23 As to the first factor, Rucker contends QuikTrip knowingly
and recklessly destroyed the additional video but presented no evidence to
support this contention. It appears Rucker did not request any additional
video until March 2021, approximately three years after it had been
automatically deleted. And as to the fourth factor, and most importantly,
as discussed above, there is no evidence to suggest the destroyed video
would have shown when a spill (not visible as of the time of Rucker’s fall)
occurred or when QuikTrip had or should have had notice of it. The
superior court did not abuse its discretion by denying Rucker’s motion for
sanctions.

CONCLUSION

¶24 For the foregoing reasons, we affirm. QuikTrip may recover
its taxable costs incurred in this appeal upon compliance with Arizona Rule
of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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