*1 Pending before the Court are Defendant QuikTrip Corporation's (“Defendant”)[1] Motion for Summary Judgment, (Doc. 65), and Plaintiff Martha Torres’ (“Plaintiff”) Motion for Spoliation Sanctions, (Doc. 66). Both motions are fully briefed. (Docs. 68, 69, 70, 71). The Court now rules on the motions.

I. BACKGROUND

On December 6, 2019, Plaintiff stopped at a QuikTrip around 1:00 AM. (Doc. 65 at 2; Doc. 70 at 15). According to Plaintiff, while in the gasoline bay area, Plaintiff slipped on a liquid substance and fell. (Doc. 65 at 2; Doc. 70 at 15). Plaintiff did not notice any wet spots on the ground prior to her fall but believes that “the substance she slipped and fell on was oil.” (Doc. 65-1 at 47; Doc. 70 at 8).

After falling, Plaintiff took photos of the liquid, left the QuikTrip, and went home. (Doc. 65-1 at 53, 56, 61). However, Plaintiff returned to the QuikTrip around 4:00 PM and made a report. (Doc. 65-1 at 60-61). Plaintiff testified that when she returned, she saw sand on the spot where she fell. (Doc. 65-1 at 60).

Defendant preserved 30 minutes of surveillance video footage after receiving Plaintiff's report. (Doc. 65-1 at 1 (received by the Clerk's office on February 28, 2025)). According to Derrick Osmond, a QuikTrip corporate representative and Rule 30(b)(6) designee, it is Defendant's general “practice” to “preserve 15 minutes [of video] before and ...after [an incident].” (Doc. 68-1 at 3). Depending on the store, video footage remains on Defendant's servers for 30 to 45 days. (Doc. 68-1 at 4). After that, the video records over itself, or “overwrites itself.” (Doc. 68-1 at 5). Plaintiff watched the surveillance footage at her deposition and conceded that the video does not show any liquids on the ground, but perhaps shows a “dark spot.” (Doc. 65-1 at 47-48). Plaintiff was injured by the fall and she incurred medical care and treatment expenses as a result.[2]

*2 Steven Sparacia, a QuikTrip personnel manager and Rule 30(b)(6) designee, described some of QuikTrip's other relevant policies. Mr. Sparacia explained that QuikTrip's “normal practice” was for an employee to take a shift walk within the first 45 minutes of their shift. (Doc. 65-1 at 182-84). As pertinent here, an employee should have taken a shift walk between 10:00 PM and 10:45 PM on December 5, 2019. (Doc. 65-1 at 182-84). Part of the shift walk includes looking for safety hazards around the gasoline bay areas. (Doc. 65-1 at 185). Employees also sometimes utilize a “daily assignment worksheet” (“DAW”) to indicate when they complete certain tasks. (Doc. 65-1 at 176). Per the DAW here, an employee power-washed the gasoline bay area after the shift walk (after 10:45 PM) but prior to the end of the shift (before 7:00 AM). (Doc. 65-1 at 194, 196). However, the checkbox next to “Shiftwalk Night” was left unchecked. (Doc. 65-1 at 177).

II. LEGAL STANDARDS

a. Summary Judgment

In a diversity case, a federal court applies state substantive law, but federal procedural law. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The federal summary judgment standard is procedural, therefore it controls in a diversity case in federal court. Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994) (“In diversity cases, procedural issues related to summary judgment are controlled by federal law.”).

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that assertion by...citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations...admissions, interrogatory answers, or other materials,” or by “showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. at 56(c)(1)(A-B). Thus, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Initially, the movant bears the burden of demonstrating to the Court the basis for the motion and the elements of the cause of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. A material fact is any factual issue that may affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts” by “com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed. R. Civ. P. 56(e)). A dispute about a fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248. The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

At the summary judgment stage, the Court's role is to determine whether there is a genuine issue available for trial. There is no issue for trial unless there is sufficient evidence in favor of the non-moving party for a jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 249-50. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. (citations omitted).

b. Negligence and Premises Liability

*3 Because this is a diversity case, the Court must apply Arizona substantive law. See Beesley v. Union Pac. R.R. Co., 430 F. Supp. 2d 968, 970 (D. Ariz. 2006) (citing Erie R.R. Co., 304 U.S. at 78-79). Generally, to establish a claim for negligence under Arizona law, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). “To establish negligence in a premises liability case under Arizona law, ‘the plaintiff must prove either, 1) that the foreign substance or dangerous condition is 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).’ ” Sheikh v. Costco Wholesale Corp., No. CV-22-00947-PHX-DLR, 2024 WL 1175761, at *2 (D. Ariz. Mar. 19, 2024) (quoting Walker v. Montgomery Ward & Co., Inc., 511 P.2d 699, 702 (Ariz. Ct. App. 1973)). Here, the Court will focus its inquiry on the issue of breach, which hinges on notice.[3]

i. Mode-of-Operation Rule

In addition to the traditional actual and constructive notice requirements stated above, Arizona courts allow slip-and-fall plaintiffs to prove notice using the “mode-of-operation” rule. See Chiara v. Fry's Food Stores of Arizona, Inc., 733 P.2d 283, 285 (Ariz. 1987). The mode-of-operation rule allows plaintiffs, in certain circumstances, to bypass the traditional notice requirements by “look[ing] to a business's choice of a particular mode of operation and not events surrounding the plaintiff's accident.” Id. The mode-of-operation rule “relieves 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., 636 P.2d 1229, 1231 (Ariz. Ct. App. 1981). “The mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer interference.” Chiara, 733 P.2d at 285-86. The mode-of-operation rule therefore only applies “when a business can reasonably anticipate that hazardous conditions will regularly arise.” Id. at 286.[4]

ii. Reasonable Care

If a slip-and-fall plaintiff succeeds in proving notice—either by establishing traditional actual or constructive notice, or via the mode-of-operation rule—the Court's inquiry moves to reasonable care under the circumstances. See id. Arizona law dictates that in a slip-and-fall case, the plaintiff “bears the burden of persuading the jury that the defendant acted unreasonably,” and “[t]he plaintiff must...come forward with evidence supporting [her] case.” Id.

III. ANALYSIS

a. Actual or Constructive Notice

Defendant argues that Plaintiff “cannot[ ] establish that QuikTrip had constructive notice of the alleged spot on which she slipped” because “Plaintiff has not presented any evidence of how long the condition existed before Plaintiff's fall.”[5] (Doc. 65 at 5-6). Constructive notice is when “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.” Walker, 511 P.2d at 702. “To prevail on [a] constructive notice theory at trial, Plaintiff would have to establish two facts: 1) the amount of time the [liquid] was on the [ground]; and 2) that amount of time was not reasonable given the circumstances.” Velasco v. Bodega Latina Corp., No. CV-18-02340-PHX-ROS, 2019 WL 1787483, at *4 (D. Ariz. Apr. 24, 2019).

*4 Here, at trial, Plaintiff would have the burden to show how long the liquid substance had been on the ground. However, as Plaintiff explains in her Motion for Spoliation Sanctions, Plaintiff faces an insurmountable burden in showing constructive notice because Defendant preserved only 15 minutes of surveillance video footage prior to Plaintiff's fall. (Doc. 66 at 6). The Court thus addresses the spoliation argument first.

i. Spoliation Legal Standard[6]

“Spoliation is the destruction or material alteration of evidence, or the failure to otherwise preserve evidence, for another's use in litigation.” Fast v. GoDaddy.com LLC, 340 F.R.D. 326, 334 (D. Ariz. 2022) (quoting Surowiec v. Cap. Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011)). Previously, there were two independent sources of power that authorized sanctions against “a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices,” and Federal Rule of Civil Procedure 37. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006); Fed. R. Civ. P. 37(b), (e). However, after the 2015 amendments to Rule 37, Rule 37 now “provides the exclusive source of sanctions for the loss of [electronically stored information (“ESI”)] and forecloses reliance on inherent authority.” Fast, 340 F.R.D. at 335 (emphasis added); see also Newberry v. County of San Bernardino, 750 Fed. App'x 534, 537 (9th Cir. 2018) (citing Fed. R. Civ. P. 37(e) advisory committee's note to the 2015 amendment) (cleaned up); Steven S. Gensler & Lumen N. Mulligan, 1 Federal Rules of Civil Procedure, Rules and Commentary, Rule 37 (2022).

Although Plaintiff asks this Court to rely on its inherent authority in deciding the Motion for Spoliation Sanctions, (Doc. 66 at 11), as explained above, the Court lacks the ability to do so. The evidence at issue—the video surveillance footage—is ESI and the Court must use the standards articulated in Rule 37(e). Neither party briefed the spoliation issue using Rule 37(e).[7] Nonetheless, because Rule 37(e) is the standard, the Court undertakes the analysis here.

ii. Rule 37(e)

Under Rule 37(e), if ESI that “should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery,” a court: