FILED
                            NOT FOR PUBLICATION
                                                                                SEP 8 2020
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT JOHNSON,                                  No.    19-15233

              Plaintiff-Appellant,               D.C. No. 2:17-cv-02710-SMB

 v.
                                                 MEMORANDUM*
COSTCO WHOLESALE
CORPORATION, a Washington
corporation; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Susan M. Brnovich, District Judge, Presiding

                              Submitted May 6, 2020**
                                Seattle, Washington

Before: KLEINFELD, W. FLETCHER, and RAWLINSON, Circuit Judges.
Dissent by Judge RAWLINSON




      *
             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).
      Robert Johnson appeals the district court order granting summary judgment

in favor of Costco Wholesale Corporation (“Costco”). We reverse.



      This was a straightforward state-law negligence claim. Johnson claimed that

he was injured by a bottle of Prosecco that fell off the conveyor belt. All he

needed to do to overcome Costco’s summary judgment motion was establish

plausibly by facts supported by admissible evidence at least a genuine issue of

material fact, such that a jury could conclude that his injury was caused by

Costco’s negligence. Fed. R. Civ. P. 56(c). He did so.



      The district court was of the view that he needed expert testimony, and he

submitted none. But Rule 56 does not mention or ordinarily require expert opinion

under Federal Rule of Evidence 702. All Johnson needs to avoid summary

judgment is cognizable evidence for a prima facie case. Had he been making an

esoteric case outside the ordinary experience of most people—for example, that

something about the conveyor belt motor was faulty—he might have needed the

opinion of someone knowledgeable about conveyor belt motors. But nothing in his

papers suggests that he was. This seems to be a simple case of a bottle falling off

an ordinary conveyor belt at the checkout counter. A jury might or might not


                                          2
conclude that the exercise of reasonable care for customers’ safety required a

higher guardrail to keep tall objects from falling off, or a sign or oral warning from

the clerk to lay bottles down instead of standing them up, or perhaps some other

means of protecting customers. It might consider the frequency of things falling

off the checkout stand, based on the jurors’ experience and judgment, as in any

routine negligence case. Costco has not explained, nor do we see, just what

“knowledge, skill, experience, training, or education” might provide the foundation

for an expert opinion, Fed. R. Evid. 702, or why an “expert’s scientific, technical,

or other specialized knowledge [would] help the trier of fact to understand the

evidence or to determine a fact in issue.”

      Arizona law does not support Costco’s argument that expert testimony was

necessary. “In the ordinary negligence action, the standard imposed is that of the

conduct of a reasonably prudent man under the circumstances” and “it is not

necessary for the plaintiff to present evidence to establish the standard of care

because the jury can rely on its own experience in determining whether the

defendant acted with reasonable care under the circumstances.” Bell v. Maricopa

Med. Ctr., 

, 1182 (Ariz. Ct. App. 1988). If lay jurors are able “to

                                           3
determine intelligently and to the best possible degree the particular issue without

enlightenment from those having a specialized understanding of the subject,” then

expert testimony may be “inappropriate” under Arizona law. Adams v. Amore, 

, 1018 (Ariz. Ct. App. 1994) (quoting State v. Chapple, 

,

1220 (Ariz. 1983)). This case does not involve “a professional defendant, such as

a health care provider, for which specialized standards of care apply,” Rudolph v.

Arizona B.A.S.S. Fed’n, 

, 1004 (Ariz. Ct. App. 1995), nor is it a case

“in which factual issues are outside the common understanding of jurors.” Rossell

v. Volkswagen of Am., 

, 524 (Ariz. 1985). Therefore, the district court

erred in ruling that plaintiff needed to provide expert testimony.



      Jurors might conclude, depending on how the evidence develops at trial, that

the hazard of bottles of highly carbonated liquid falling and breaking was obvious

from the mode of operation, or that the hazard was known to Costco because items

fell off the conveyor belt frequently. Costco argued that Johnson should not be

able to use the Arizona “mode-of-operation” rule because it was not raised in the

district court. But the mode-of-operation rule does not form a separate claim.

Instead, a line of Arizona authority merely holds that plaintiffs’ proof of a

particular mode of operation substitutes for the need to prove notice if a third


                                           4
party’s conduct was the immediate cause of injury. Chiara v. Fry’s Food Stores,

, 285 (Ariz. 1987). Johnson raised these points below. All that

means for this case is that if Johnson sufficiently establishes mode of operation, he

need not prove that Costco had actual or constructive notice about the falling bottle

of Prosecco wine in time to do something about it before it injured Johnson.

Costco’s argument that we cannot consider this rule because

Johnson did not raise it below.



      Johnson produced evidence that an upright “sparkling wine-type bottle” fell

off the conveyor belt and shattered, injuring him. He also produced evidence that

items fell off the conveyor belt frequently. Viewing the record in the light most

favorable to Johnson, Weil v. Citizens Telecom Servs. Co., 

, 1002 (9th

Cir. 2019), this is enough to create a genuine dispute of material fact as to whether

Costco “reasonably could anticipate that the hazardous condition would occur on a

regular basis” and whether Costco exercised reasonable care under the

circumstances, Shuck v. Texaco Ref. & Mktg., Inc., 

, 1249 (Ariz. Ct.

App. 1994). Unlike the typical mode-of-operation case involving a “slip and fall,”

there is no question here about the origin of the condition that led to Johnson’s

                                           5
injuries. Johnson alleged he was in line to check out at Costco, another customer

placed the bottle upright on the conveyor belt, and the bottle fell off the conveyor

belt. Johnson has set forth evidence for the proposition that Costco reasonably

could foresee that a third party, a customer, would occasionally cause something to

fall off the conveyor belt and injure the next customer in line. 

. Whether Costco was required to do anything more than it did to prevent

customers’ items from falling off the conveyor belt and injuring others turns on the

reasonableness of the height of its guardrails and the likelihood of upright bottles

falling off the belt—questions which, as we have described above, are squarely

within the province of the jury. The court might or might not, depending on how

the evidence develops, exercise its discretion to instruct on the Arizona mode-of-

operation theory, but it is not a separate claim for relief or theory for which some

special pleading or notice would be required.



      We respectfully disagree with our dissenting colleague. Perhaps without a

ruler, the jurors would have difficulty judging the height of the guardrail, though if

the height mattered, one side or the other could prove it with an eyewitness and a

ruler without the need for any expert opinion. As for the parameters of any

claimed explosion of the carbonated beverage, almost certainly the jurors would


                                           6
have had experience with carbonated beverages, since there is nothing unusual or

esoteric about them. Of course, if the plaintiff tries to prove its case with

something outside the experience of ordinary jurors, then it may need expert

witnesses to do it, but as the record comes to us, there is no suggestion that that is

so.



      We intimate no view as to whether Johnson ought or ought not to prevail.

We hold merely that he is entitled, on what he has submitted, to have a jury decide.



      REVERSED and REMANDED.




                                           7
                                                                                   FILED
Johnson v. Costco Wholesale Corp., Case No. 19-15233
                                                                                    SEP 8 2020
Rawlinson, Circuit Judge, dissenting:
                                                                              MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS
      I respectfully dissent. I would affirm the district court’s determination that

expert testimony was required to raise a material issue of fact regarding whether

Costco “breached the appropriate standard of care.”

      As the district court noted, Plaintiff asserted that Costco breached its duty of

care in the following ways: “(1) the conveyor belt did not have a tall enough

guardrail; (2) Costco should not have allowed the bottle to proceed unless it laid

the bottle on its side; and (3) Costco failed to warn customers about the possibility

of carbonated [explosive] glass bottles falling off the conveyor belt.”

      Expert testimony “may be required in those cases in which factual issues are

outside the common understanding of jurors.” Rossell v. Volkswagen of Am., 

, 524 (Ariz. 1985) (citation omitted). “It is for the trial court in the

exercise of a sound discretion to determine whether expert testimony is appropriate

under the circumstances of the case.” Cohen v. W. Hotels, Inc., 

, 27

(9th Cir. 1960) (citation and alteration omitted). In my view, the district court

acted within its “sound discretion,”

the asserted breaches of

the duty of care required the assessment of “factual issues . . . outside the common

understanding of jurors.” 

(citation omitted).



                                            1
       The first assertion, that the guardrail on the conveyor belt was not “tall

enough,” requires assessment of the height of the guardrail. According to the

record, the guardrail was estimated to be between one and six inches in height. As

an initial matter, most potential jurors would likely be unable to accurately

estimate the height of the guardrail. See, e.g., Stephanie Pappas, Judging

Distances and Depth Perception Change with Arm Length, Scientific American

(Jan. 22, 2014). “The justices of the Supreme Court may be among the best legal

minds in the country, but they have no eye for distances . . . [T]he justices were

stumped at the size of [a] 35-foot long . . . buffer zone.”

Associate

Justices estimated that 35 feet was “pretty much the [length of the] courtroom.”

However, the courtroom actually measured more than twice as long (90 feet). See

this indication of the difficulty of estimating heights, there is also

the question of the proper height for guardrails at a checkout stand. How are the

jurors to make that determination short of speculation? See Neely v. St. Paul Fire

and Marine Ins. Co., 

, 346 (9th Cir. 1978) (noting that “[p]arties are

entitled to have the determination of their rights rest on more than speculation and

guesswork.”) Who will inform the jurors of the range of guardrail heights within

the industry, and what is a minimum and maximum height consistent with best

practices? These are the sort of questions usually addressed by experts. See, e.g.,

                                            2
McMurtry v. Weatherford Hotel, Inc., 

, 526 (Ariz. Ct. App. 2013)

(describing expert testimony regarding whether a hotel window “conform[ed] to

industry standards for hotels”). The majority suggests use of a ruler to measure the

height of the guardrails. But what is the jury to do with that information? They are

still left with a raw measurement and no frame of reference to suggest how that

measurement compares to industry standards. See

is the need for expert testimony to explain the

parameters of any expected “explosion” as a result of the fall of carbonated

beverages. See Ball Corp. v. George, 

, 1145-46 (Ariz. Ct. App.

1976) (accepting testimony regarding the “cause of [a Pepsi-Cola] bottle failure”

resulting in an explosion due to the amount of gas pressure). Jurors’ everyday

experiences with carbonated beverages simply do not equip them to opine on the

amount of gas pressure that will cause a bottle to explode. See

the district court abused its discretion, the majority

merely reaches a different conclusion on the issue of whether expert testimony was

required under the circumstances of this case. Because, as discussed, there are

analogous cases supporting the district court’s determination that expert testimony

was required, it cannot be fairly said that the district court erred in its application of

the law. See Kode v. Carlson, 

, 612 (9th Cir. 2010) (“The abuse of

                                            3
discretion standard requires us to uphold a district court determination that falls

within a broad range of permissible conclusions, provided the district court did not

apply the law erroneously. . . .” (citation omitted). I would affirm the judgment of

the district court.1




       1
       Although the majority does not ultimately conclude that the mode-of-
operation analysis is applicable, I note that this theory only applies if there is
evidence that the conveyor belt regularly created hazardous conditions. See
Contreras v. Walgreens, 

, 763 (Ariz. Ct. App. 2006) (concluding that
evidence of spills occurring twice a week did not necessarily “permit the inference
such spills regularly created a hazardous condition”).
                                           4