                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               AUG 21 2020
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN BLACKBURN;                                  No. 19-56064
DIANE BLACKBURN,
                                                 D.C. No. 5:18-cv-02487-DOC-SP
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

WALMART INC.; DOES, 1-10, inclusive,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                            Submitted August 12, 2020**
                               Pasadena, California

Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
      Appellants John and Diane Blackburn appeal the district court’s grant of

summary judgment to Walmart on their general negligence, premises liability, and

loss of consortium claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm.

          The district court did not err in granting summary judgment on all claims.

First, the Blackburns failed to demonstrate the existence of a genuine issue of

material fact as to whether a dangerous condition existed. See Olsen v. Idaho State

Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004) (describing the standard of review

for a grant of summary judgment); see also Ortega v. Kmart Corp., 26 Cal. 4th

1200, 1205 (2001) (laying out the requirements for a negligence claim under

California law). Assuming arguendo that the can that struck John Blackburn fell

from the top shelf, the Blackburns have not presented any evidence that the can

was stocked in a dangerous manner. An image taken shortly after the incident

shows a neatly stacked aisle with, at most, two cans stacked one on top of the

other. The fact that a can did strike John Blackburn does not on its own

demonstrate that the cans were stocked in a dangerous manner prior to the image

being taken.

      Second, the Blackburns failed to demonstrate the existence of a genuine

issue of material fact as to whether Walmart had notice or constructive notice of


                                            2
the alleged dangerous condition. See id. at 1206. No evidence suggests that

Walmart knew of a mis-stocked can. Additionally, no evidence was presented with

regards to when the alleged dangerous condition arose. As a result, it cannot be

inferred that the subject can was improperly stocked for a period of time sufficient

to charge Walmart with constructive notice. See Perez v. Ow, 200 Cal. App. 2d

559, 563 (Ct. App. 1962).

      Third, the Blackburns failed to demonstrate the existence of a genuine issue

of material fact with regards to whether Walmart’s conduct was the cause of John

Blackburn’s injury. See Ortega, 26 Cal. 4th at 1205. “A mere possibility of such

causation is not enough; and when the matter remains one of pure speculation or

conjecture, or the probabilities are at best evenly balanced, it becomes the duty of

the court to direct a verdict for the defendant.” Id. at 1205–06 (quoting Prosser &

Keeton, Torts § 41 (5th ed. 1984)). The Blackburns have not provided evidence

that the subject can was improperly stocked or that Walmart knew or should have

known that the can was improperly stocked. As a result, only speculation supports

the argument that Walmart was the cause of John Blackburn’s injury.

      The district court also did not err in concluding that the doctrine of res ipsa

loquitor does not apply in this case. The Blackburns have not demonstrated that the

subject can was in the exclusive control of Walmart. See Brown v. Poway Unified


                                           3
Sch. Dist., 4 Cal. 4th 820, 825–26 (1993) (stating that for res ipsa loquitor to apply

the accident must have been caused “by an agency or instrumentality within the

exclusive control of the defendant”). Assuming arguendo that the can that struck

John Blackburn was stocked on the top shelf, the evidence does not support the

claim that the can was in Walmart’s exclusive control. Signs requesting that

patrons “ask for assistance with items on the top shelf,” do not demonstrate that

customers actually do so. Without some form of barrier or additional restriction it

seems equally likely that a customer or an employee was the last to handle the can

that struck John Blackburn. As a result, res ipsa loquitor is inapplicable.

      AFFIRMED.




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