Urrutia v. Target Corp.
Filing
22
MEMORANDUM & ORDER granting 18 Motion for Summary Judgment. For the reasons discussed in the attached Memorandum and Order, the Court grants Defendant's motion for summary judgment. Ordered by Judge Margo K. Brodie on 5/27/2016. (Haji, Sara)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------VIRGINIA URRUTIA,
Plaintiff,
v.
MEMORANDUM & ORDER
14-CV-5311 (MKB)
TARGET CORP. d/b/a TARGET,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On June 30, 2014, Plaintiff Virginia Urrutia commenced this action in the Supreme Court
of New York, Richmond County, against Defendant Target Corporation doing business as
Target. Defendant removed the proceeding to the Eastern District of New York on September
11, 2014, based on diversity jurisdiction under 28 U.S.C. § 1331. (Notice of Removal, Docket
Entry No. 1.) Plaintiff alleges that Defendant’s negligence caused her to fall and injure herself.
(Compl. 2–3, annexed to Decl. of Michael Crowley (“Crowley Decl.”) as Ex. A, Docket Entry
No. 18-2.) Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. (Def. Notice of Mot. for Summ. J. (“Def. Mot.”), Docket Entry No. 18; Def.
Mem. of Law in Supp. of Def. Mot. for Summ. J. (“Def. Mem.”), Docket Entry No. 18-16; Def.
Reply Mem. in Supp. of Def. Mot. (“Def. Reply”), Docket Entry No. 18-18.) Plaintiff opposes
the motion. (Pl. Mem. of Law in Opp’n to Def. Mot. (“Pl. Mem.”), Docket Entry No. 20.) For
the reasons set forth below, the Court grants Defendant’s motion for summary judgment.
I.
Background
Plaintiff seeks damages for injuries she sustained when she slipped and fell in the aisle of
the Target store on Richmond Avenue in Staten Island. (Def. Statement of Undisputed Facts
Pursuant to Local R. 56.1 (“Def. 56.1”) ¶ 1, Docket Entry No. 18-1; Pl. Resp. to Interrogs. Set
One ¶ 6 (“Pl. Interrog. Resp.”), annexed to Crowley Decl. as Ex. K.)
a.
Customer safety protocol at Target
The Target store on Richmond Avenue opened in late 2013. (Dep. of Michael Hay (“Hay
Dep.”) 12:2–11, annexed to Crowley Decl. as Ex. H.) The parties agree that at the time of
Plaintiff’s injury, Defendant had several training and safety mechanisms in place to prevent and
remedy slip-and-fall accidents. (Pl. Statement of Undisputed Facts Pursuant to Local R. 56.1
(“Pl. 56.1”) ¶¶ 27, 28, 30, 33; Def. 56.1 ¶¶ 27, 28, 30, 33.) 1 At least once and up to three times
per day, all employees in Defendant’s Richmond Avenue store met to discuss “specific things
going on that day,” including customer safety. (Hay Dep. 9:2–22; Pl. 56.1 ¶ 28.) Every “team
member” employee was trained to prevent and clean food and water spills, and some other
employees were trained to prevent and clean hazardous materials. (Hay Dep. 18:3–12; Pl. 56.1 ¶
29–30.) Team members were trained to communicate potential hazards to one another via
walkie-talkie and to guard spills while their colleagues obtained cleaning supplies from the
approximately seven “spill stations” throughout the store. (Hay Dep. 17:23–19:17.) Defendant’s
employees shared responsibility for identifying and cleaning spills, but the Leader on Duty
(“LOD”) was primarily responsible for “everything in the building.” (Id. at 28:23–29:9; Pl. 56.1
¶ 34.) The LOD also conducted laps through the main aisles of the store (“brand walks”) every
half-hour. (Hay Dep. 31:8–20.) Defendant did not require its employees to document floor
inspections, but employees prepared internal reports such as a Guest Incident Report, LOD
1
The parties have submitted their respective Statements of Undisputed Facts Pursuant to
Local R. 56.1 as a single document. The Court will refer to Plaintiff’s responses to Defendant’s
56.1 and Plaintiff’s statement of additional facts as “Pl. 56.1”; to Defendant’s 56.1 and
Defendant’s responses to Pl. 56.1 as “Def. 56.1”; and to Defendant’s further replies to Plaintiff’s
responses as “Def. Reply 56.1.”
2
Investigation Report, and Team Member Witness Statements when accidents occurred. (Pl. 56.1
¶ 3, 36; Def. 56.1 ¶ 3.)
b.
The May 10, 2014 accident
On the afternoon of May 10, 2014, Plaintiff entered Defendant’s Richmond Avenue store
with her adult son, Juan Espinosa, and her grandson. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 24.) According to
Plaintiff’s account of the accident, she arrived at the store at approximately 1:45 PM. (See Dep.
of Virginia Urrutia (“Urrutia Dep.”) 22:23–25, annexed to Crowley Decl. as Ex. G; LOD
Investigation Report (“LOD Report”), annexed to Crowley Decl. as Ex. E.) Plaintiff wore a
blouse with pants and flip-flop sandals. (Urrutia Dep. 24:20–25:14.) Approximately five
minutes after she entered the store, Plaintiff saw clear liquid on the floor in the area in which she
would later slip and fall. (Id. at 26:8–25.) Plaintiff told her son and grandson that she saw liquid
on the floor. (Id. at 28:3–10.) According to Plaintiff’s son, Plaintiff mentioned shortly after
entering the store that she saw liquid on the floor, but she did not describe the liquid to him.
(Dep. of Juan Espinosa (“Espinosa Dep.”) 15:2–10, annexed to Crowley Decl. as Ex. I.) He did
not see the liquid himself as the family entered the store. (Espinosa Dep. 14:10–18.) Neither
Plaintiff nor her son reported the liquid to Defendant’s employees at the time she first saw it. 2
(Urrutia Dep. 27:16–21; Espinosa Dep. 14:10–18, 15:7–19.)
2
Plaintiff provides somewhat conflicting testimony about the presence of Defendant’s
employees in the area at the time that she first saw liquid on the floor:
Q: After you saw the water did you report it to anyone you thought
to be working for Target?
A: I didn’t necessarily do it because there were plenty of workers
coming and going, so, no.
Q: Did you see any Target workers walk by the water when you
first entered the store?
A: No, I didn’t pay attention. I just kept walking.
(Urrutia Dep. 27:16–28:2.)
3
Thereafter, Plaintiff and her family walked around the store for about forty minutes and
collected sundry groceries. (Espinosa Dep. 12:4–23.) At the time of her fall, Plaintiff was
carrying a bag of hot dogs and a jar of pickles in her arms, and she had a purse strapped across
her chest. (Urrutia Dep. 24:3–16; Pl. 56.1 ¶ 39; Def. 56.1 ¶ 39.) Plaintiff, her son and her
grandson all walked in parallel through the main pharmacy aisle toward the cash registers.
(Urrutia Dep. 31:5–18; Espinosa Dep. 13:8–13; Pl. 56.1 ¶ 20.) The floor in the pharmacy
department was covered with off-white tiles. (Pl. 56.1 ¶ 26.) Plaintiff was looking straight
ahead as she walked, and neither Plaintiff nor her son saw the liquid immediately before she
slipped. (Urrutia Dep. 29:13–21; Espinosa Dep. 18:8–16; Def. 56.1 ¶ 9.) As Plaintiff slipped,
her body fell to the floor on top of her left leg and arm. (Urrutia Dep. 32:10–21.)
On the day of Plaintiff’s accident, the employee assigned to monitor the pharmacy
department was not at work. (Hay Dep. 19–22, 53:3–5.) According to Michael Hay, the Senior
Team Leader at Defendant’s Richmond Avenue location, he heard Plaintiff’s fall from ten or
fifteen feet away and arrived to find Plaintiff standing with her son and grandson in the aisle.
(Id. at 46:19–47:17.) Hay observed “a small amount of clear liquid,” which he estimated to be
about a half-cup, at the end of aisle A2. (Id. at 48:6–9, 59; LOD Investigation Report.) Hay
called over two other employees on his walkie-talkie, and they verified that nothing had leaked
from the merchandise on the surrounding shelves. (Hay Dep. 48:17–50:3.) As they waited for
the EMT to arrive to take Plaintiff to the hospital, Plaintiff orally relayed the accident to Hay.
(Id. at 47:20–25.) Plaintiff, a native Spanish speaker, required her son’s help to translate and
relay the facts. (Urrutia Dep. 35:3–36:21.) Hay prepared the Guest Incident Report, and
Plaintiff signed it. (Id.; see Guest Incident Report, annexed to Crowley Decl. as Ex. D.) Neither
Plaintiff nor her son informed Hay that Plaintiff had seen water in the same area approximately
4
forty-five minutes prior to Plaintiff’s accident. (Urrutia Dep. 38:20–39:3; Hay Dep. 71:24–72:5.)
According to Hay’s deposition testimony, he had inspected the area by A2 on a brand
walk approximately fifteen minutes prior to the accident. (Hay Dep. 51:12–18.) He had not seen
“anything that would be unsafe.” (Id. at 51:19–24.) Hay also stated that he would have walked
through the area approximately forty-five minutes prior to the accident — or about thirty minutes
before the brand walk immediately prior to Plaintiff’s fall. 3 (Id. at 52:3–17.)
c.
Plaintiff’s medical treatment
Plaintiff felt pain in her left ankle, knee, and elbow five seconds after her fall. (Urrutia
Dep. 43:20–44:3.) She was taken by ambulance to the hospital, where she received painkillers
and was X-rayed. (Id. at 45:8–12.) The doctor advised Plaintiff that she had damage to her knee
ligament but would need magnetic resonance imaging (“MRI”) and follow-up tests. (Id. at 46:4–
25.) At some point thereafter, Plaintiff received an MRI of her knee and began physical therapy.
(Id. at 56:12–23.) Physical therapy was not helpful, and on July 21, 2014, Plaintiff underwent
arthroscopic surgery for her knee. (Id. at 57:11–19.) The surgery did not significantly improve
Plaintiff’s condition. (Id. at 59:5–21.)
II. Discussion
a.
Standard of Review
Summary judgment is proper only when, construing the evidence in the light most
favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant
3
There is no evidence in the record as to whether other employees in the area that
afternoon observed or cleaned any spills in the pharmacy aisles. While Defendant has provided a
DVD of footage from its security cameras that afternoon — including footage of the pharmacy
area twenty minutes prior to Plaintiff’s fall, (Guest Incident DVD, annexed to Crowley Decl. as
Ex. J) — the quality of the footage renders it impossible to identify how many, if any, of
Defendant’s employees passed through the area during that time.
5
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Cortes v. MTA N.Y.C.
Transit, 802 F.3d 226, 230 (2d Cir. 2015); Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015);
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). The role of the court “is not
to resolve disputed questions of fact but only to determine whether, as to any material issue, a
genuine factual dispute exists.” Rogoz v. City of Hartford, 796 F.3d 236, 245 (2d Cir. 2015)
(first quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010); and then citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)). A genuine issue of fact exists
when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252. The “mere existence of a scintilla of evidence” is not sufficient to
defeat summary judgment. Id. The court’s function is to decide “whether, after resolving all
ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could
find in favor of that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
b.
Plaintiff’s negligence claim
Because this action was removed from New York state court on the basis of diversity of
citizenship between the parties, Plaintiff’s claims are governed by New York substantive law and
federal procedural law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Exec. Risk
Indem., Inc. v. Fieldbridge Assocs. LLC, --- F. App’x ---, ---, 2016 WL 944396, at *2 (2d Cir.
Mar. 14, 2016) (“Under the Erie doctrine, federal courts sitting in diversity apply state
substantive and federal procedural law.” (quoting Gasperini v. Ctr. for Humanities, Inc., 518
U.S. 415, 427 (1996))); Deutsche Bank Nat. Trust Co. v. Quicken Loans Inc., 810 F.3d 861, 865
(2d Cir. 2015) (“When sitting in diversity jurisdiction and determining New York state law
claims, we must apply ‘the law of New York as interpreted by the New York Court of Appeals.’”
(quoting Licci ex rel Licci v. Lebanese Canadian Bank, SAL, 739 F.3d 45, 48 (2d Cir. 2013) (per
6
curiam))).
To establish a prima facie case of negligence under New York law, a plaintiff must show:
(1) that the defendant owed the plaintiff a duty of care; (2) that the defendant breached that duty;
and (3) that the plaintiff suffered damages substantially as a result of that breach. Pasternack v.
Lab. Corp. of Am. Holdings, 807 F.3d 14, 19 (2d Cir.) (citing Lombard v. Booz–Allen &
Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002)), as amended (Nov. 23, 2015); see also
Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 576 (2011) (“To
establish a cause of action sounding in negligence, a plaintiff must establish the existence of a
duty on defendant’s part to plaintiff, breach of the duty and damages.” (citing Akins v. Glens
Falls City School Dist., 53 N.Y.2d 325, 333 (1981))).
To prove a breach of the duty of care in a slip-and-fall case, the plaintiff must
demonstrate a genuine issue of material fact that the defendant either created the dangerous
condition or had actual or constructive notice of the condition. Feis v. United States, 484 F.
App’x 625, 628 (2d Cir. 2012) (citing Bykofsky v. Waldbaum’s Supermarkets, Inc., 619 N.Y.S.2d
760, 761 (App. Div. 1994)); see also Bynoe v. Target Corp., 548 F. App’x 709, 710 (2d Cir.
2013) (summary order) (“Under New York law, a landowner, who did not create the dangerous
condition, is liable for negligence when a condition on his land causes injury only when the
landowner had actual or constructive notice of the condition.” (quoting Taylor v. United States,
121 F.3d 86, 89–90 (2d Cir. 1997))); Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836,
837 (1986) (addressing actual or constructive notice of the dangerous condition in the context of
a slip-and-fall accident). Defendant does not contest that it owes a duty to its patrons to maintain
its premises in reasonably safe condition. Plaintiff does not argue that Defendant created the
condition that caused the accident, (Def. 56.1 ¶ 16; Pl. 56.1 ¶ 16), nor does Plaintiff argue that
7
Defendant had actual notice of the condition that caused the accident. 4 The only question before
this Court is whether a reasonable jury could find that Defendant had constructive notice of the
liquid in which Plaintiff slipped.
“To constitute constructive notice, a defect must be visible and apparent and it must exist
for a sufficient length of time prior to the accident to permit defendant’s employees to discover
and remedy it.” Antonelli v. Wal-Mart Stores, Inc., 216 F.3d 1071 (2d Cir. 2000) (emphasis
added) (quoting Gordon, 67 N.Y.2d at 837 (1986)); see also Bynoe, 548 F. App’x at 710 (same);
Taylor, 121 F.3d at 90 (same); see, e.g., Nussbaum v. Metro-N. Commuter R.R., 603 F. App’x
10, 12 (2d Cir. 2015) (granting summary judgment without reaching the question of whether the
hazard existed for a sufficient length of time because the hazard was determined not to be visible
and apparent); Lionel v. Target Corp., 44 F. Supp. 3d 315, 323–24 (2014) (granting summary
judgment where the plaintiff could only prove that plastic lid was visible and apparent, but could
not prove that it existed for a sufficient length of time). The plaintiff’s burden at this stage of the
proceedings is not merely to proffer a plausible theory, but to present evidence from which a
reasonable jury could draw the inference that the liquid was both visible and apparent and that it
existed for a sufficient length of time prior to the accident. See Tenay v. Culinary Teachers
Ass’n of Hyde Park, 281 F. App’x 11, 13 (2d Cir. 2008) (noting that “in cases where the
nonmovant will bear the ultimate burden of proof at trial on an issue, the moving party’s burden
under Rule 56 [of the Federal Rules of Civil Procedure] will be satisfied if he can point to an
absence of evidence to support an essential element of the nonmoving party’s claim,” and
4
Although Plaintiff argued in her interrogatory responses that Defendant had actual
notice of the hazardous condition, she informed the Court that she would not be advancing an
actual notice argument for purposes of this motion and made no arguments as to actual notice in
her documents in opposition to Defendant’s motion for summary judgment. (See Min. Entry
dated July 7, 2015.)
8
holding that “the district court did not err in relying on [the plaintiff’s] failure to adduce evidence
regarding the elements of his [negligence] claim” in granting summary judgment (citing Brady v.
Town of Colchester, 863 F.2d 205, 210–11 (2d Cir. 1988))). A plaintiff cannot simply prove that
the defendant was “generally aware of the existence of the dangerous condition”; instead, she
must prove that the defendant had “notice of the ‘particular condition’ at issue.” Taylor, 121
F.3d at 90 (quoting Gordon, 67 N.Y.2d at 838).
Here, Defendant asserts that Plaintiff has not produced any evidence that the spilled
liquid was (1) visible and apparent and (2) present for a sufficient length of time that Defendant
would have had the opportunity to discover and remedy it. (See Def. Mem. 9–13.) Plaintiff
argues that although Hay conducted a brand walk fifteen minutes before her fall, he negligently
failed to notice the same liquid that was visible and apparent to her when she entered the store
forty-five minutes prior to her fall. (See Pl. Mem. 12.) Construing the evidence in Plaintiff’s
favor, based largely on Plaintiff’s testimony that the clear liquid was on the floor when she first
entered the store forty-five minutes prior to the accident, a reasonable jury could find that the
hazard existed for a sufficient length of time to permit Defendant to remedy it. However,
because Plaintiff has not adduced any evidence beyond her own testimony that the clear liquid
was visible and apparent, the Court grants Defendant’s motion for summary judgment.
i.
Sufficient length of time
The mere presence of a hazardous condition does not create a breach of the duty of care.
See Casierra v. Target Corp., No. 09-CV-1301, 2010 WL 2793778, at *2 (E.D.N.Y. July 12,
2010); see also Serengetti v. Shorestein Co., East L.P., 682 N.Y.S.2d 176, 178 (App. Div. 1998)
(“The mere existence of a foreign substance, without more, is insufficient to support a claim of
negligence.”). Rather, there must be evidence of “how long [the substance] was there before the
9
fall.” Casiano v. Target Stores, No. 06-CV-6286, 2009 WL 3246836, at *3 (E.D.N.Y. Sept. 24,
2009). A plaintiff may not simply offer speculation to support her theory of notice, but can
overcome summary judgment “by producing circumstantial evidence that the defective condition
existed for a period of time before the accident.” Casierra, 2010 WL 2793778, at *2; compare
Doona v. OneSource Holdings, Inc., 680 F. Supp. 2d 394, 404 (E.D.N.Y. 2004) (finding
summary judgment appropriate where the plaintiff’s theory of notice was based on “speculation
and conjecture far removed from fact” (collecting cases)) with Bynoe, 548 F. App’x at 711–12
(vacating and remanding district court’s grant of summary judgment where the plaintiff and her
expert adduced evidence that spilled syrup crystallized and became sticky after left on floor for
some time); Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626 (1985) (denying summary judgment
where the plaintiff slipped on baby food that was “dirty and messy”); and Giuffrida v. Metro N.
Commuter R.R. Co., 720 N.Y.S.2d 41, 42–43 (App. Div. 2001) (“The consistent description of
the substance as a ‘stain’ and ‘dry’ and ‘solid’ is evidence from which a jury would be warranted
in finding that the condition had been present for a substantial period of time.”).
Plaintiff argues that because she observed a clear liquid upon arriving at Defendant’s
store and slipped in a similar clear liquid in the same area approximately forty-five minutes later,
the clear liquid she slipped in was the same liquid she had seen on her way in to the store. (Pl.
56.1 ¶ 50; Pl. Mem. 5.) Defendant relies on a series of cases in which summary judgment was
granted because the plaintiff could not offer any non-speculative evidence about how long the
substance remained on the ground. 5 (Def. Mem. 13–15.)
5
In support of its argument that it did not have constructive notice of the spill, Defendant
asserts that the spill must have been very recent — and perhaps come from the passersby
reflected in Defendant’s video footage before the accident — because Hay, the Senior Team
Leader who responded to the accident, testified that he had conducted a brand walk of the area
10
Plaintiff offers sufficient non-speculative evidence that the liquid in which she fell was
on the floor for long enough that Defendant’s employees should have noticed it. First, Plaintiff
provides her own sworn testimony that she noticed the same type of liquid in the same area
shortly after she entered Defendant’s store, forty-five minutes before the accident. (Pl. Mem. 3;
Urrutia Dep. 29:4–12.) Second, Plaintiff’s son states that his mother told him,
contemporaneously with her observation, that she saw water as they entered the store. (Pl. Mem.
3; Espinosa Dep. 15:2–10.) Third, Plaintiff correctly argues that Hay’s testimony may simply
serve as proof of his negligence in overlooking the liquid when he conducted his brand walk
fifteen minutes before her fall. (Pl. Mem. 13.)
Defendant’s account of the accident — which accepts as true Plaintiff’s initial
observation of the clear liquid but also insists that there was no liquid on the floor during Hay’s
brand walk — infers, without stating, that the initial clear liquid that Plaintiff observed was
cleaned up before her fall and that another customer spilled new liquid between the last brand
walk and Plaintiff’s fall. (See Def. Mem. 12–13; Def. Reply Mem. 9.) Even under the
circumstances inferred by Defendant, a jury could reasonably conclude that Defendant’s policy
to constantly monitor its floors for spills, (Hay Dep. 28:23–29:9, 31:8–20), and to share that
responsibility among at least twenty well-trained employees on the day of the accident, suggests
and observed only “normal operations” fifteen minutes prior to the accident. (Hay Dep. 51:12–
24.) However, Hay’s testimony is in conflict with Plaintiff’s testimony that the clear liquid she
observed upon entering the store was the same clear liquid in which she fell forty-five minutes
later. Because a jury would therefore not be required to credit Hay’s testimony, the Court
disregards it in deciding Defendant’s motion for summary judgment. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (noting that a court reviewing a summary
judgment motion “must disregard all evidence favorable to the moving party that the jury is not
required to believe [except] that evidence supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes from uninterested witnesses.”)
(citations and internal quotation marks omitted); Casierra v. Target Corp., No. 09-CV-1301,
2010 WL 2793778, at *2 (E.D.N.Y. July 12, 2010) (citing Reeves, 530 U.S. at 151).
11
that the liquid stayed on the floor for a sufficiently long period of time to be identified and
cleaned. This is particularly true where it appears that none of Defendant’s employees passed
through the relevant area in the twenty minutes before Plaintiff’s fall, (“Booking Hallway” video
on Guest Incident DVD, annexed to Crowley Decl. as Ex. J; Hay Dep. 70:13–24), and where
Defendant acknowledges that it was short-staffed in the pharmacy department that day, (Hay
Dep. 53:19–22). See, e.g., Castro v. Target Corp., No. 14-CV-526, 2015 WL 1476863, at *5
(E.D.N.Y. Mar. 31, 2015) (finding a triable issue of fact regarding the length of time that paper
folders were on the floor because the area was constantly patrolled by the defendant’s
employees); Giuffrida, 720 N.Y.S.2d at 42–43 (finding that the defendants had constructive
notice because there was evidence that the “condition had been present for a substantial period of
time” and that “the area where [the p]laintiff fell is subject to regular inspection and cleaning”);
see also Kelsey v. Port Authority of N.Y. & N.J., 383 N.Y.S.2d 347, 348 (App. Div. 1976)
(finding that jury could reasonably conclude that the defendant did not properly observe or clean
the hazard in part because “[t]he building attendants were instructed to pay special attention to
the fast elimination of all spillages” and “[a] building attendant was present at the scene just prior
to the accident”).
Accepting as true Plaintiff’s assertion that she observed the same type of liquid in the
same area forty-five minutes before her fall, and discounting any evidence from Defendant’s
witness that the jury is not required to accept, a jury could reasonably conclude that the liquid
was present for a sufficient length of time that Defendant should have noticed and remedied it.
ii.
Visible and apparent
Courts generally look to circumstantial evidence, such as “the circumstances surrounding
the injury and the condition of the premises,” to determine whether a jury could reasonably draw
12
the inference that the condition was visible and apparent. Castellanos v. Target Dep’t Stores,
Inc., No. 12-CV-2775, 2013 WL 4017166, at *5 (S.D.N.Y. Aug. 7, 2013) (quoting Touri v.
Zhagui, No. 06-CV-00776, 2010 WL 779335, at *3 (S.D.N.Y. Mar. 5, 2010)); see Marasligiller
v. City of New York, 217 F. App’x 55, 58 (2d Cir. 2007) (approving the use of circumstantial
evidence to suggest actual notice); Negri, 65 N.Y.2d at 626 (approving the use of circumstantial
evidence to suggest constructive notice); see also Nussbaum, 603 F. App’x at 12 (finding no
visible and apparent hazard from detergent residue on floor of train car where conductor saw no
residue and the plaintiff saw only water prior to the accident); Castellanos, 2013 WL 4017166, at
*6 (finding no visible and apparent hazard where plaintiff fell on plastic display sign that was
“somewhere between see-through and white” in color, no other witnesses saw the sign and
surveillance video did not show other Target patrons slipping or avoiding an object in the
accident area); Schwarz v. FedEx Kinko’s Office, No. 08-CV-6486, 2009 WL 3459217, at *13
(S.D.N.Y. Oct. 27, 2009) (finding that defect in floor mat was not visible and apparent because
the plaintiff’s witnesses testified that the hazard was concealed, the plaintiff did not observe any
visible dangers before her fall and store manager observed no defect or wear-and-tear after the
fall)..
Here, Plaintiff argues that the liquid in aisle A2 was visible and apparent because (1) she
observed the same liquid when she walked into Defendant’s store with her son and grandson
forty-five minutes before her fall, and (2) she and Hay both observed the liquid after Plaintiff
slipped in it. (Pl. Mem. 1, 12.)
Defendant urges the Court to discount Plaintiff’s testimony that she observed the same
clear liquid upon entering the store. (Def. Reply 2.) While Defendant correctly notes that
“witness credibility is generally inappropriate at the summary judgment stage,” Defendant
13
argues, without explanation, that Plaintiff’s testimony here falls within an exception because “no
reasonable jury would credit [P]laintiff’s testimony.” (Id. (quoting Rivera v. Ndola Pharm.
Corp., 497 F. Supp. 2d 381, 390 (E.D.N.Y. 2007))). While it is true that Plaintiff’s testimony
could be viewed as somewhat inconsistent, 6 it is not “so replete with inconsistencies and
improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to
credit the allegations made.” Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir. 2005)
(citations omitted).
Although the Court makes no credibility determinations as to Plaintiff’s testimony,
Plaintiff has offered only post-accident observations by herself and Hay to corroborate her initial
observation of the liquid forty-five minutes before her accident. Plaintiff points to Hay’s
deposition testimony that he observed water on the ground after her accident, and to the LOD
Investigation Report that memorialized Hay’s post-accident observation. (Pl. Mem. 11–12.)
While courts do not discount a plaintiff’s post-accident observations about the visibility
of the hazard, they tend to credit those observations that are corroborated by other evidence. See,
e.g., Cantalupo v. John Anthony’s Water Cafe, Inc., 721 N.Y.S.2d 397, 398 (App. Div. 2001)
(holding that the plaintiff’s testimony that she observed the puddle fifteen-to-twenty minutes
before she fell was insufficient on its own to create a triable issue of fact as to visibility); see also
Alexander v. Marriott Int’l, Inc., No. 01-CV-1124, 2002 WL 1492125, at *3 (S.D.N.Y. July 11,
2002) (finding that the defendant had constructive notice where the plaintiff’s post-accident
observations were corroborated by a witness who had seen the hazard twenty minutes prior);
6
Plaintiff testified both that she did not see the liquid immediately before she slipped in
it and that she knew it was the same liquid she had seen earlier because it “looked the same as
when [she] entered [the store.]” (Urrutia Dep. 29:4–18.)
14
Yioves v. T.J. Maxx, Inc., 815 N.Y.S.2d 119, 120 (App. Div. 2006) (holding that the trial court
should have denied the defendants’ motion for summary judgment where the plaintiff’s postaccident observations were supported by pre-accident observations, and where the defendant’s
employees submitted no evidence that the slip-and-fall area was inspected or cleaned that day).
Plaintiff relies on Massey v. Newburgh West Realty, Inc., 923 N.Y.S.2d 81 (App. Div. 2011), to
argue that post-accident observations are sufficient to create a triable issue of fact as to
constructive notice. (Pl. Mem. 13.) In finding for the plaintiff on summary judgment in Massey,
however, the court relied not only on the plaintiff’s post-accident testimony about an inch-thick
plate of ice that extended across seven feet, but also on freezing February temperatures in upstate
New York, to find that a jury could reasonably impute constructive notice of ice to the defendant.
See Massey, 923 N.Y.S.2d at 84.
Here, Plaintiff has offered no such circumstantial evidence to corroborate her postaccident observations about the liquid. Both Hay’s testimony and the LOD Investigation Report
stem from the same observation by the same witness, whose job after a customer accident was to
closely examine the surrounding area for anything that could have caused the accident. Thus,
while Hay’s testimony and the LOD Investigation Report establish that the hazard existed, they
do not support Plaintiff’s claim that the liquid was a visible and apparent hazard that Defendant
should have observed before she slipped in it. See Castellanos, 2013 WL 4017166, at *3 (“[The
plaintiff’s] sworn statements that she saw the plastic display sign on the ground after she slipped,
are sufficient at the summary judgment phase to establish that a hazardous condition existed.”
(citing Cousin v. White Castle Sys., Inc., No. 06-CV-6335, 2009 WL 1955555, at *6 (E.D.N.Y.
July 6, 2009))).
Although the Court construes the facts in Plaintiff’s favor, other evidence in the record —
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including Plaintiff’s own testimony that she did not see the liquid immediately before she slipped
in it — belies the visibility of the liquid. See Shimunov v. Home Depot USA, Inc.,
No. 11-CV-5136, 2014 WL 1311561, at *6 (E.D.N.Y. Mar. 28, 2014) (finding no constructive
notice because neither the plaintiff nor the defendant’s employee noticed the oily substance
before the plaintiff’s fall, so the record “plainly contradict[ed the] plaintiff’s assertion that the
oily substance was ‘visible’ or ‘apparent’”).
Contrary to other cases that found or assumed a visible and apparent hazard, the liquid
here was not described as stark against the off-white floor tiles, as trodden and dirty or as vast in
surface area. Compare Negri, 65 N.Y.2d at 626 (denying summary judgment where “a lot of
broken jars” of baby food were “dirty and messy” against the floor), and Yioves, 815 N.Y.S.2d
at 120 (denying summary judgment where foreign substance on the floor was “about four feet
long and two feet wide”), with Richards v. Pathmark Stores, Inc., No. 07-CV-1790, 2008 WL
3165582, at *7 (S.D.N.Y. Aug. 6, 2008) (denying summary judgment on other grounds but
noting that the ice on which the plaintiff fell was not visible or apparent because the “[p]laintiff’s
own deposition testimony suggests that the ice was, in fact, invisible”), and Pinnock v. Kmart
Corp., No. 04-CV-3160, 2005 WL 3555433, at *3 (S.D.N.Y. Dec. 29, 2005) (granting summary
judgment where the plaintiff could not recall if clear plastic hanger on which she slipped “had
any footprints or dirt on it”). Here, the liquid is described as clear against off-white floor tiles
and as approximately a half-cup in volume. (Pl. 56.1 ¶26; Hay Dep. 48:6–9, 59; LOD
Investigation Report.)
Furthermore, Plaintiff’s son, who entered the store with Plaintiff, testified that he did not
see the clear liquid upon entering the store. (Espinosa Dep. 14:10–18.) Neither did he or
Plaintiff see the clear liquid before Plaintiff slipped and fell. (Id. at 18:12–16; Def. 56.1 ¶ 9; Pl.
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56.1 ¶ 9.) Indeed, Plaintiff’s son testified that the liquid in which Plaintiff fell “wasn’t
noticeable.” (Espinosa Dep. 22:10–21.) Moreover, video footage of the area during the twenty
minutes preceding the accident shows eight different customers passing through the very area in
which Plaintiff fell. (“Booking Hallway” video at 2:15 p.m., 2:17 p.m., 2:18 p.m., 2:20 p.m.,
2:22 p.m., 2:26 p.m., 2:28 p.m., 2:33 p.m.) As in Castellanos, none of the customers in the video
footage avoided or in any way noticed a spill on the ground. See Castellanos, 2013 WL
4017166, at *6. As in Schwarz, Plaintiff did not observe the hazard right before she fell, and her
own witness stated that it was not noticeable. See Schwartz, 2009 WL 3459217, at *13.
Moreover, as in Shimunov, evidence in the record contradicts Plaintiff’s assertions of visibility.
See Shimunov, 2014 WL 1311561, at *6. Thus, a reasonable jury would have insufficient
evidence from which to find that the clear liquid in which Plaintiff slipped was visible and
apparent.
Because Plaintiff has not produced any evidence that the liquid in which she fell was
visible and apparent, she has not raised a triable issue of fact with respect to constructive notice.
III. Conclusion
For the foregoing reasons, the Court grants Defendant’s motion for summary judgment.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: May 27, 2016
Brooklyn, New York
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