Seixas v. Target Corporation
ORDER denying 14 Motion for Summary Judgment *** For the reasons explained in the attached Memorandum & Order, Target's motion for summary judgment is denied. My courtroom deputy will contact the parties to arrange a status conference to discuss the future progress of this case. Ordered by Judge Edward R. Korman on 5/16/2017. (Schonfeld, Gabriel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
MEMORANDUM & ORDER
– against –
15-cv-03851 (ERK) (RML)
In this premises liability case, Target Corp. moves for summary judgment on the ground
that the plaintiff, Carlos Seixas, cannot show by a preponderance of the evidence that Target had
notice of the dangerous condition that caused his fall. Target’s motion is denied.
Target, a major national retailer, operates a large store at the corner of Atlantic and Flatbush
Avenues in Brooklyn. In the evening of July 17, 2014, as Carlos Seixas was shopping at that
location, he slipped and fell on some liquid dish soap that had spilled onto the floor. Seixas fell
while situated about halfway to three-quarters of the way down aisle A22, one of several aisles
that contained cleaning products. Seixas had not noticed the soap before he slipped in it, did not
know how it got on the floor or where it had come from, and did not have any idea how long it had
been there. A Target employee had last inspected aisle A22 about 10 minutes before Seixas fell,
and did not see any liquid on the floor.
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New York’s Law of Premises Liability
Because the parties are in federal court based only on their diversity of citizenship, see 28
U.S.C. § 1332(a), New York’s substantive law of negligence governs this removed action, see
generally Hanna v. Plumer, 380 U.S. 460 (1965). Negligence in New York follows the familiar
elements of 1) a duty of care owed the plaintiff, 2) a breach of that duty, and 3) a compensable
injury proximately caused by the breach. Solomon ex rel. Solomon v. City of New York, 489 N.E.2d
1294, 1294–95 (N.Y. 1985). To show a breach of duty in a slip-and-fall case, the plaintiff must
show that the defendant either “created the condition which caused the accident, or . . . had actual
or constructive notice of the condition.” Bykofsky v. Waldbaum’s Supermkts., Inc., 619 N.Y.S.2d
760, 761 (N.Y. App. Div. 1994).
Target seeks summary judgment on whether it breached its duty to Seixas. In opposition,
Seixas does not argue either that Target spilled the soap on which he slipped, or that anyone
working at Target actually knew the spill was there. Rather, he argues that Target had constructive
notice of the spill at the time he fell. The New York Court of Appeals has held that to put a
proprietor on constructive notice, a condition “must be visible and apparent and it must exist for a
sufficient length of time prior to the accident to permit [the] defendant’s employees to discover
and remedy it.” Chianese v. Meier, 774 N.E.2d 722, 726 (N.Y. 2002) (quoting Gordon v. Am.
Museum of Natural History, 492 N.E.2d 774, 775 (N.Y. 1986)).
Because Target does not seriously contest the point, I assume without deciding that the
soap spill was “visible and apparent.” The dispositive issue, then, is whether Seixas has presented
evidence sufficient to survive summary judgment that, at the time he fell, the spill had existed for
long enough to put Target on notice of a dangerous condition on its premises.
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Since Federal Rule of Civil Procedure 56 governs Target’s motion, each party bears the
same burden of production at summary judgment as it would at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The standard would be different in the New York state court where this
action started: Under New York’s Civil Practice Rules, N.Y. C.P.L.R. 3212(b), Target would have
the burden of producing evidence sufficient to support a verdict that it did not have constructive
notice of the spill, DeFalco v. BJ’s Wholesale Club, Inc., 832 N.Y.S.2d 632, 633 (N.Y. App. Div.
2007). The predictable consequence is that Target and other retailers routinely remove personal
injury suits to federal court in order to avoid New York’s tougher test for avoiding trial—the sort
of forum shopping that federal courts have sought to discourage since Erie R. Co. v. Tompkins,
304 U.S. 64 (1938).
Although the Second Circuit has not spoken to the issue, district courts within the circuit
have been unanimous in holding that Federal Rule 56’s burden-allocation scheme must be applied
in diversity cases, state law notwithstanding. See, e.g., Painchault v. Target Corp., 2011 WL
4344150 (E.D.N.Y. 2011) (Garaufis, J.). I agree. Indeed, because Rule 56 directly answers the
question at hand, there is no need to “wade into Erie’s murky waters” to determine whether
C.P.L.R. 3212(b) is substantive or procedural. Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393, 398 (2010). Where a federal statute or rule “purports to govern, it applies
if it is valid, even if, absent an applicable federal [law],” federal courts would follow the relevant
state rule. Cappiello v. ICD Publications, Inc., 720 F.3d 109, 113–14 (2d Cir. 2013). The rule
applies unless it exceeds the scope of either the Rules Enabling Act, or Congress’s power to
“regulate matters [of practice in the federal courts] which . . . are rationally capable of
classification as either” substance or procedure. Hanna v. Plumer, 380 U.S. 460, 472 (1965).
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Rule 56’s directive that the parties’ summary-judgment burdens match their trial burdens
meets that standard. It does not alter the substantive legal standard which each party must direct
its proof towards, or the substantive evidentiary standard that would apply at trial. See Anderson
v. Liberty Lobby, Inc., 47 U.S. 242, 254–55. Rather, it allows those same substantive rules to be
applied by a different factfinder (a judge rather than a jury), at a different time (earlier rather than
later), on the basis of evidence presented in a different way (printed submission rather than live
presentation conforming to the Rules of Evidence). Each of these effects is at least arguably
procedural—in that they go to “the judicial process for enforcing rights and duties recognized by
substantive law,” Hanna, 380 U.S. at 464 (quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14
(1941))—and that is enough to conclude that Rule 56 falls within Congress’s power to regulate
federal practice, Capiello, 720 F.3d at 115. For the same reason, it does not “abridge, enlarge, or
modify any substantive right,” and is within the scope of the Rules Enabling Act, 28 U.S.C. § 2072.
Hanna, 380 U.S. at 464.
Since Rule 56 applies, and Seixas would bear the burden of proving his claim at trial, Target
may prevail at the summary judgment stage by “pointing to an absence of evidence to support an
essential element of” Seixas’s case. Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486
(2d Cir. 2014) (quoting Brady v. Town of Colchester, 863 F.2d 205, 210–11 (2d Cir. 1988) (internal
modifications and quotation marks omitted)). Once it does so, Seixas must demonstrate the
existence of a genuine issue for trial by pointing to evidence “such that a reasonable jury could
return a verdict” in his favor on the point in question. Cross Commerce Media, Inc. v. Collective,
Inc., 841 F.3d 155, 162 (2d Cir. 2016).
Seixas does not point to any direct evidence of how long the soap spill was present before
his fall. Instead, he contends a reasonable jury could infer that the spill was present for long enough
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that Target employees could have found and fixed it. Of course, lots of knowledge is based on
inferences, United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 854 (7th Cir. 2009)
(Easterbrook, J.), and as the non-moving party, Seixas is entitled to have all reasonable ones drawn
in his favor, Cross Commerce, 841 F.3d at 162.
Seixas argues that photographs taken shortly after his fall show dirt and debris in and
around the spill, from which a jury could infer that the soap had been sitting on the floor and
accumulating detritus for an appreciable time. As a general matter, the New York Court of Appeals
has recognized that as a permissible inference, given the right evidentiary foundation. See Negri
v. Stop & Shop, 480 N.E.2d 740, 741 (N.Y. 1985). Seixas has laid such a foundation here.
Between them, the parties have submitted three separate copies of the same photographs.
The first two copies, reproduced as Target’s Exhibit E and Seixas’s Exhibit A, were so low-quality
as to be almost useless. In deciding whether the photos create a triable issue of fact regarding
constructive notice, I rely solely on the higher-quality copies that Target later provided in response
to my order of May 10, 2017. They are docketed as Exhibit 1 to Document #18.
The photographs in question show what appears to be a waxed linoleum tile floor, of the
sort common in grocery stores and big-box retailers. Two separate soap spills are visible. The
details of one spill are shown in the first and fourth photographs. It is dumbbell-shaped, with intact
edges. It does not appear, with the exception of one black mark at its lower right-hand tip, to have
accumulated any dirt or grime. The details of the other spill are shown in the second photograph.
In contrast to the relatively clean, intact appearance of the first spill, this second patch of soap has
obviously been disturbed since it was spilled. Its edges are irregular and heavily smeared, and it
appears to have an accumulation of black particles floating in it. 1
Target points to the deposition of Niall Rouse, the EMT who responded to the incident, who testified that the spill
had no “streaks” and looked “untouched or undisturbed.” Seixas Ex. B., Rouse Dep. at 18:16–19:7. I note that this
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The third photograph (viewed along with the other three) indicates each spill’s position
relative to the other, and to the aisle as a whole. The dumbbell-shaped spill is toward the edge of
the aisle, in the shadow of a boxy metal object—perhaps a structural pillar or length of ducting—
that sticks vertically up from the aisle’s floor and narrows its walkable width. A patron walking
far enough towards the middle of the aisle to avoid crashing into this metal box would also have
been far enough from the aisle’s edge to avoid impinging on the dumbbell spill. From the
perspective of the photographer, the smeared spill is located approximately three tile widths down
and two tile widths to the right of the dumbbell-shaped one. That position would have put it
squarely in the walking path of any customer who moved towards the middle of the aisle in order
to navigate around the metal box.
Viewed in the light most favorable to Seixas, these photographs are sufficient to defeat
summary judgment on the question of constructive notice. The evidence shows two spills: one
shielded from customers passing through the aisle, and one directly in their path. The out-of-theway spill is relatively pristine, while the in-the-way one is smeared and speckled with grime. A
reasonable jury could infer that the latter spill accumulated that dirt as shopping carts and shoe
leather passed through it over the course of as many as ten minutes between Seixas’s fall and
Target’s most recent inspection of aisle A22, and that a Target employee should have discovered
and disposed of it during that time.
To be sure, this is less evidence from which to infer the spill’s likely duration than existed
in Negri v. Stop & Shop or Figueroa v. Pathmark Stores. In Negri, the plaintiff slipped in a mess
of broken baby food jars. In addition to the baby food being “dirty and messy,” a nearby witness
testimony appears to contradict the photographs relied on by both parties. Nevertheless, the summary judgment
stage is not the time to “weigh evidence or assess the credibility of witnesses.” Hayes v. N.Y.C. Dept. of Corrections,
84 F.3d 614, 619 (2d Cir. 1996).
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had not heard breaking glass for 15 or 20 minutes prior to the plaintiff’s accident, and the aisle had
not been cleaned for one or two hours. 480 N.E.2d 740, 741 (N.Y. 1985). And in Figueroa, where
the plaintiff slipped on a pool of spilled liquid, footprints and shopping-cart tracks led some
distance away from the spill, and had begun to change color and consistency. 2004 WL 74261, at
*3–4 (S.D.N.Y.). But other New York decisions strongly suggest that slip-and-fall plaintiffs may
put a constructive-notice theory to the jury when a spill is “dirty or . . . ha[s] been tracked through.”
See Wells v. Golub Corp., 582 N.Y.S.2d 557, 558 (N.Y. App. Div. 1992); Mueller v. Hannaford
Bros. Co., 713 N.Y.S.2d 789, 790 (N.Y. App. Div. 2000). So, mindful that constructive notice is
ultimately a question for the trier of fact, I opt to “act with caution,” and deny summary judgment
in favor of a full trial on the merits. Drug Mart Pharm. Corp. v. Am. Home Prods. Corp., 472 F.
Supp. 2d 385, 415 (E.D.N.Y. 2007) (Glasser, J.) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)); cf. 10A WRIGHT & MILLER § 2728 (4th ed.) (“[E]ven [when] . . . the summaryjudgment standard appears to have been met, the court should have the freedom to allow the case
to continue when it has any doubt as to the wisdom of terminating the action prior to a full trial.”). 2
Target’s motion for summary judgment is denied. My courtroom deputy will contact the
parties to schedule a status conference to discuss the path forward in this litigation. The parties
should be prepared to address the possibility of holding a trial limited to the question of liability
before beginning expert discovery.
Brooklyn, New York
May 16, 2017
Edward R. Korman
Edward R. Korman
United States District Judge
Because the photographs are sufficient to defeat Target’s motion, I do not reach Seixas’s alternate theory of
constructive notice based on the testimony of Chris Garvey. See Seixas Mem. in Opposition 7–10.
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