                                                                            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                           NOT FOR PUBLICATION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.




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