Johnson v. Wal-Mart Stores East, LP

Filing 44

MEMORANDUM & ORDER, For the foregoing reasons, Defendant's motion for summary judgment 26 is GRANTED IN PART and DENIED IN PART as follows: Defendant's motion for summary judgment on Plaintiff's theory that Defendant had constructiv e notice of the dangerous condition is granted. Defendant's motion for summary judgment on the issue of actual notice is denied. Plaintiff's motion for sanctions for spoliation of evidence 30 is DENIED. The parties aredirected to contact the chambers of Magistrate Judge Lois Bloom to schedule the filing of a Joint Pretrial Order in accordance with this Court's Individual Rules, to be electronically filed no later than April 1,2018. The parties are further directed to confer and to contact the Court's Deputy at 718-613-2545 to set a trial date. So Ordered by Judge Nicholas G. Garaufis on 1/10/2018. (Lee, Tiffeny)

?lf^

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

MAMIE JOHNSON,

Plaintiff,
MEMORANDUM & ORDER

-against16-CV-1423(NGG)
(LB)
WAL-MART STORES EAST,LP,
Defendant.
-X

NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff Mamie Johnson brings this personal injury action based on injuries she allegedly
sustained when she slipped and fell in a store owned and operated by Defendant Wal-Mart Stores
East, LP. (Ex. A to Not. of Removal("Compl.")(Dkt. 1 at ECF pp.5-8)13.) Plaintiff contends
that Defendant negligently failed to remove the hazard that allegedly caused her fall, and thus is
liable to her in tort.

Before the court are Defendant's motion for summary judgment and Plaintiffs crossmotion for sanctions for Defendant's alleged spoliation of evidence. (Mot. for Summ. J.
("Summ J. Mot")(Dkt. 26); Mot. for Sanctions("Sanctions Mot")(Dkt. 30).) For the following
reasons,the court GRANTS IN PART and DENIES IN PART Defendant's motion for summary
judgment and DENIES Plaintiffs cross-motion for sanctions.
I.

BACKGROUND

A.

Factual History

The facts in this opinion are drawn, where possible, from the parties' statements of
undisputed facts, submitted pursuant to Local Rule 56.1. (Def. R. 56.1 Statement("Def. 56.1")

(Dkt. 28); PI. R. 56.1 Counterstatement("PI. 56.1")(Dkt. 33); PL R. 56.1 Reply("PI. 56.1")
(Dkt. 32); Def. R. 56.1 Reply("Def. 56.1 Reply")(Dkt. 38); Def. Response to PI. 56.1

1

(Dkt. 39).) See also Holtz v. Rockefeller & Co.,258 F.3d 62,73(2d Cir. 2001)(The court "is
not required to consider what the parties fail to point out in their Local Rule 56.1 statements."

(internal quotation marks and citations omitted)). This opinion relies only on facts that are truly
undisputed in the parties' Rule 56.1 statements, noting any areas of apparent disagreement and
citing to the record for additional facts.
1.

Testimony Regarding Plaintiffs Fall

The events in question occurred on July 6,2013,in Defendant's store in Spring Hill,
Florida. (Def. 56.1

7-8; 11.) Plaintiff and her son, Lavel Johnson ("Lavel"), entered the store

in order to purchase a "tote bag." (Id K 10.) Plaintiff was directed by a store employee to the

back ofthe store. (Id

12-13.) As she was walking there. Plaintiff states that she slipped in a

puddle ofliquid on the floor. (Id

17,19(quoting Ex. E to Summ. J. Mot.("PI. Dep. Tr.")

(Dkt. 27-5)44:18-55:10).)

Plaintifftestified that she did not see the liquid before she slipped and did not know how
long it had been on the floor, but that it was "a lot" of liquid. (PI. Dep. Tr. 49:12-18, 50:2-4,
51:25-52:3.) She further testified that she did not see any containers that could have been the

source ofthe spill on the floor, nor did she see safety cones or other indicators that the floor was
wet. (Id 53:13-24.) Similarly, in a written accoimt made on the day ofthe fall and an interview

conducted two days later with one ofDefendant's employees. Plaintiff did not mention that she
was aware ofthe source ofthe liquid or of any evidence that store employees knew about the

liquid or had attempted to clean it up. (Ex. F. to Summ. J. Mot.("Customer Statement")
(Dkt. 27-6); Ex. D.to Summ.J. Mot.("PI. Interview Tr.")(Dkt. 27-4).)

Plaintifftestified that,following her fall, a female employee ofthe store "came running

up to [her] and asked if she was alright."^ (PI. Dep. Tr. 57:21-23.) Plaintiff responded that she
was imable to get up and had injured her knee, at which point that employee hailed other

employees to assist. (Id 59:6-21.) Plaintifftestified that a second employee^ came to the scene
and attempted "to wipe [] up [the liquid] with some napkins or something." (Id 59:24-60:25.)
During this process and while she was still on the floor. Plaintiff stated that she called Lavel with
her cellular phone, at which point he came to her assistance. Qd 59:17-21,61:11-15.) After
several minutes, store employees brought a wheelchair for Plaintiff, and she was removed fi om
:
the store and brought to the hospital in an ambulance. (Id 73:11-24.)

Plaintiffs son, Lavel, provides a somewhat different account. In his deposition, Lavel
testified that he was approximately one aisle away from Plaintiff at the time ofthe accident, and
that he was prompted to come to the scene when he heard Plaintiff"yelling [his] name." (Ex. G
to Summ. J. Mot.("Lavel Dep. Tr.")(Dkt. 27-7) 16:3-8,17:3-11.) Lavel estimated that he
arrived "ten seconds" after Plaintiff fell Qd 17:16-7), and that no one else was present when he

reached Plaintiffs location (id 20:12-16: see also id. 31:3-81.
Lavel testified that the liquid on the floor appeared to be urine, and that one of

Defendant's employees told him that one ofthe store's customers had urinated on the floor on

' "corrections" submitted subsequent to Plaintiffs deposition,Plaintiff attempted to change this statement to
In
reflect that "[t]he first Wal-Mart employee that came to the scene had apologized to me for my fall and then added
that she had just gone to fetch a bucket and cleaning materials to clean fte wet floor." (Def. 56.1 ^ 3 n.2.) At a
hearing before Magistrate Judge Lois Bloom on January 5,2017,Judge Bloom struck this and other "corrections" to
Plaintiffs deposition testimony. (Jan. 6, 2017, Scheduling Order.)

^ Plaintiffs testimony on this point is somewhat ambiguous, as it could be read to suggest that either the first or
second employee who arrived at the scene ofPlaintiffs fall attempted to clean up the puddle. (PI. Dep. Tr. 59:22-25
("Q. You said that she went to get pother employee? A. She came over to try to wipe it up with some napkins or
something."); 60:4-8("Q
[Y]ou said that she went to get another employee. A. 1 don't know if she called or
went to get [her]."); 60:20-25("Q
So, did another Wahnart employee Aen arrive at the scene? A.Yes. Q.
How many? A.1 know it was one other lady came [sic]. That's all.").) Exactly who tried to clean up the puddle at
this point is, however, ultimately immaterial to the dispute.

other occasions. (Td 21:11-22:18; see also id. 22:14-17("[Defendant's employee] didn't say
they actually witnessed [the customer urinating], he was saying it like, oops it's Saturday,
another day ofthat happening again.").) Lavel testified that, when he arrived at the scene of

Plaintiff's accident, he observed paper towels "soaked" in the liquid. (Id. 32:14-18; see also
Ex. H to Summ.J. Mot.("Witness Statement")(Dkt. 27-8).) Lavel stated that the paper towels

looked as if"someone was trying to clean [the puddle] up and [] didn't finish"(Lavel Dep.
Tr. 20:8-11),though he was unable to say whether the paper towels were placed on the floor
before or after Plaintiff fell(id 39:20-41:15). Lavel also testified that he saw a Wahnart

employee in the area with a mop to clean up the spill, and that the employee explained that they
were "already in the midst of cleaning up that space" at the time ofPlaintiffs fall.
0431:16-32:13.)
2.

Video Evidence^

In addition to the deposition testimony regarding the incident. Defendant also produced a
video purporting to depict Plaintiff's fall. (Ex. N to Summ. J. Mot.("Store Video")(Dkt. 43).
The court has reviewed the video, which shows the following events:

• At approximately 11:37:25, an individual in a yellow dress falls
while walking between the aisles of the store. (Td 11:37:25.) The
cause ofthe fall is not visible.

• Within approximately ten seconds of the fall, multiple other
individuals approach the individual on the floor. (Id 11:37:35.)
One of those individuals, who appears to be an employee of the
'
Plaintiff objects to the introduction ofthe video on the grounds that it has not been "authenticated." (See PL Mem.
in Supp. ofSanctions Mot. and Opp'n to Summ J. Mot.("PI. Mem.")
(Dkt. 34)at 17-18.) Plaintiffs objection is
without merit: Defendant has provided afiSdavits from a declarant who is familiar with the video surveillance
systems in place at die store in question and who states that the video produced "accurately reflects the video that
the store preserved ofthe incident in question." (Ex.7 to Sanctions Mot.("1st Dorrity Aff.")(Dkt. 31-7); see also
Ex. Q to Def. Reply("2d Dorrity Aff.")(Dkt. 35-3)(averring, inter alia, that the affiant "is familiar with and
operates the store's surveillance system").) These statements regarding the process by which the video was recorded
and delivered are sufficient to show that"the video is authentic and the events are accurately depicted." Bovkin v.
Western Express. Inc.. No. 12-CV-7428(NSR)
(JCM),2016 WL 8710481, at *5(S.D.N.Y. Feb. 5,2016)(noting
that video evidence can be authenticated by, inter alia,"testimony as to the chain ofcustody").
4

store,walks away quickly (id 11:37:58), while at least other one
employee remains with the individual on the floor (id
11:37:58-11:38:30).
• Just over a minute after Plaintiffs initial fall, another store
employee approaches the individual on the floor holding what
appears to be a roll of paper towels. (Id 11:38:30.) The employee
then appears to pull several paper towels offthe roll and place them
on the ground near the fallen person. (Id 11:38:35-38.)

• Roughly three minutes after the fall, an individual arrives pushing a
cart containing what appear to be mops and other cleaning supplies.
(Id 11:40:27.)
• At 11:41:03, three and a half minutes after the initial fall, an

individual wearing a white sleeveless shirt arrives and appears to
converse with the fallen person. Qd 11:41:03.) That person then
remains at the site of the accident and eventually removes the fall
victim jfrom the area in a wheelchair. (Id 11:55:48.)

During Lavel's deposition, counsel for Defendant asked Lavel whether could identify
himself as the individual seen in the video wearing a white sleeveless shirt. (Lavel Dep. Tr.

29:5-9.) Lavel responded "[t]hat can be me, but Fm not sure." (Id 29:10-11.)
3.

Testimonv Regarding Store Procedures

In addition to testifying about the incident itself, several of Defendant's employees

discussed the procedures for preventing and addressing hazardous conditions within the store.
Veronica Matos, a "salaried member of management" at the store in question, testified that store
employees "walk the facility nonstop... to verify there is nothing dangerous." (Ex. I to Summ.
J. Mot.("Matos Dep. Tr.")(Dkt. 27-9) 9:5-7.) Matos testified that any employee who discovers
a liquid spill on the floor must stay with the spill and find another employee to clean the area.

(Id 17:9-18:13.) Both Matos and other employees ofthe store testified that any liquids founds
on the floor are generally cleaned with paper towels. (Id 27:14-22.)

^ In its motion, Defendant identifies the individuals as employees. (See, e.g.. Def. 56.1 Tf 67.) The court agrees with
this characterization, as those individuals appear to be wearing store uniforms.

Defendant's employees also testified regarding the procedures for addressing slip-andfall incidents. According to those employees, store employees are directed to first assist the
fallen customer and ask whether he or she needs medical assistance. (Id. 22:16-23:10; Ex. L to

Summ J. Mot.("Kokoris Dep. Tr.")(Dkt. 27-12) 8:23-9:7.) Next, employees are directed to
clean up the cause ofthe accident. (Ex. J to Summ. J. Mot.("Kramlich Dep. Tr.")(Dkt. 27-10)
59:5-15.) Before cleaning the spill, however. Defendant's policy directives call for employees to
document the scene, including photographing the area "[pjrior to altering the scene." (Ex. 8 to
Sanctions Mot.("Policy Document")(Dkt. 31-8) at ECF p.90; see also Kramlich Dep.
Tr. 59:11-22; Kokoris Dep. Tr. 9:8-10:3.)
B.

Procedural History

Plaintifffiled this action in the Supreme Court ofthe State ofNew York for Kings
County on March 18,2016,and Defendant removed the case to this court on March 23,2016.

(Not. of Removal.(Dkt. 1).) Plaintiff brings a single cause ofaction for negligence and seeks
$1 million in damages for injuries sustained m her fall. (Id.I
On July 28,2017, Defendant filed its fully briefed motion for summaryjudgment.

(Summ J. Mot.) On the same day. Plaintifffiled its cross-motion for sanctions against Defendant
for its conduct related to video evidence ofthe incident. (Sanctions Mot.)
n.

DISCUSSION

Currently before the court are Defendant's motion for summary judgment and Plaintiff's

cross-motion for sanctions. The court addresses those motions separately, turning first to
Plaintiffs sanctions motion and then addressing Defendant's motion for summary judgment.
A.

Plaintiffs Motion for Spoliation Sanctions

Plaintiff asks the court to impose sanctions against Defendant based on Defendant's

purported failure to produce video evidence ofthe accident as requested in discovery and
6

requests that the court impose unspecified sanctions. (PI. Mem.in Supp. of Sanctions Mot. and
Opp'n to Summ. J. Mot.("PI. Mem.")(Dkt. 34).) After review,the court finds the motion to be

baseless and denies it accordingly.
"Spoliation is the destruction or significant alteration of evidence, or the failure to

preserve property for another's use as evidence in pending or reasonably foreseeable litigation."
West V. Goodvear Tire & Rubber Co.. 167 F.Sd 776,779(2d Cir. 1999). Where a party spoliates

evidence in violation of a court order, including through non-production of evidence, the court
may sanction that party pursuant to Federal Rule of Civil Procedure 37(b). Orbit One
Commc'ns.Inc. v. Numerex Corp.. 271 F.R.D. 429,435(S.D.N.Y. 2010)(citing Residential
Funding Com,v. DeGeorge Fin. Grp.. 306 F.3d 99,106-07(2d Cir. 2002)).

Plaintiff presents two overlapping bases for her motion. First, she contends that
Defendant failed to produce "a copy ofthe in-store video surveillance between... 10.00 A.M.

[and] 12.00 P.M.[on the date ofthe incident]," as requested in discovery(Ex.2 to Sanctions
Mot.(Dkt. 31-2)^ 15), instead producing footage from approximately one hour before and one

hour after Plaintiff's fall—^that is, from 10:36 AM to 12:36 AM.^ (PI. Mem. at 3.) Second,
Plaintiff claims that the two hours of surveillance that Defendant produced are insufficient

because that tape was accompanied by an affidavit that identified the footage as depicting "the
incident which occurred on Julv7.2013. involving the Plaintiff, Mamie Johnson." (Ex.7 to

Sanctions Mot.("1st Dorrity Aff")(Dkt. 31-7) H 4(emphasis added).) Plaintiff suggests that the

^ In her memorandum in support ofthe Sanctions Motion,Plaintiffclaims that the video produced only depicted the
period between 10:36 AM to 11:41 AM. (PI. Mem.at 2-3.) In its opposition to the Sanctions Motion, however,
Defendant responds that the video it produced "begins at 10:36:54 a.m. and ends at 12:36:58"(Def. Reply in Supp.
ofSumm. J. Mot and Opp'n to Sanctions Mot.("Def. Reply")(Dkt. 40)at 3), which is consistent with the video
provided to the court as Exhibit N to Defendant's motion for summaryjudgment(Store Video). Plaintiff does not
explain her claim to have received a truncated copy ofthe video, nor does she raise the claim again in her reply.
(See generallv PI. Reply in Supp. of Sanctions Mot.(Dkt. 37)at 1-2.) Having reviewed the video, the court sees no
basis for this contention.

affiant's statement that he reviewed video only from the day after Plaintiffs accident on July 6,
2013,indicates that the video produced is irrelevant to the claims at issue and non-responsive to
her requests. (PI. Mem. at 3.)
Neither argument merits a finding of spoliation or imposition ofsanctions. The court
finds Plaintiffs argument that the video is non-responsive or confusing because ofthe incorrect
date in the affidavit to be entirely imconvincing. This error is highly unlikely to have prejudiced
Plaintiff: the affidavit indicates that the video surveillance depicts Plaintiffs injury (1st Dorrity
Aff.f 4), and the time and date listed on the video and events shown therein correspond with

other accounts ofPlaintiff's fall^ Plaintiffcan hardly claim, then, to have been uncertain as to
what video Defendant produced.
Plaintiffs claim that Defendant failed to produce video that was responsive to her
discovery demand fares no better. In cases involving video surveillance ofthe scene of an

accident, a party's obligation to preserve extends to "footage 'ofthe accident'—^put otherwise,
the video that 'recorded [plaintiff's] fall.'" Gleeson v. Marriot Hotel Servs.. Inc..
No. 1 l-CV-6295(CM),2013 WL 4573905, at *2(S.D.N.Y. Aug. 26,2013)(quoting Matteo v.
Kohl's Den't Stores. Inc.. No.09-CV-7830(RJS),2012 WL 760317, at *4(S.D.N.Y. 2012));^
also Lacevv. Target Corp.. No. 13-CV-4098(RML),2015 WL 2254968, at *6(E.D.N.Y.
May 13,2015). In preserving the tape that showed the site ofthe incident before and after

Plaintiff's fall. Defendant discharged its duty to safeguard the relevant evidence. Inasmuch as

Plaintiff suggests that Defendant should have produced video going back further in time, or

® Defendant also provided a corrected affidavit in response to Plaintiffs motion, which states that the video tape
produced dates from July 6,2013, and attributes the prior error to the aflSant's review ofthat video on July 7,2013.
(Ex. Q to Def. Reply("2d Dorrity Afif")(Dkt. 35-3)If 4.)
8

showing other parts ofthe store,^ she fails to provide any reason to believe that additional
footage would do anything to demonstrate the source ofthe spill, store employees' awareness of
the source ofthe spill, or any other fact relevant to the claims at issue. Because Plaintiff cannot
show that Defendant violated an obligation to preserve footage relevant to her claim,the court
sees no basis to conclude that Defendant should be subject to any spoliation sanction.

Accordingly, Plaintiff's motion for spoliation sanctions is denied.
B.

Motion for Summary Judgment

Defendant moves for summary judgment as to Plaintiffs sole claim for negligence. In

particular. Defendant contends that Plaintiff has produced no evidence from which a reasonable
jury could find that Defendant or its employees knew or should have known ofthe liquid on the
store floor in which she slipped. In response. Plaintiff contends that she has provided evidence

that supports an inference both that Defendant's employees had actual knowledge ofthe hazard
and had attempted to address it and, separately, that the facts support a finding that Defendant
was on constructive notice ofthe spill by virtue ofthe regularity with which such hazards arise

and the length oftime it was present on the date in question. For the reasons that follow,the
court concludes that Defendant is entitled to summaryjudgment on the issue ofconstructive
notice but not as to Plaintiff's theory of actual notice.
1.

Legal Standard

A court must grant summaryjudgment 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 oflaw." Fed.
R. Civ. P. 56(a). "A 'material' fact is one capable ofinfluencing the case's outcome under

governing substantive law,and a 'genuine' dispute is one as to which the evidence would permit

'
Plaintiff does not claim that Defendant had access to other cameras that depicted the site ofPlaintifFs fall and
failed to produce footage from such cameras.

a reasonable juror to find for the party opposing the motion." Figueroa v. Mazza. 825 F.3d 89,
98(2d Cir. 2016)(citing Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248 (1986)). "The

movant may discharge this burden by showing that the non-moving party has 'fail[ed] 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.

Lantheus Med.Imaging. Inc. v. Zurich

Am.Ins. Co.. 255 F. Supp. 3d 443,451 (S.D.N.Y. Apr. 28,2015)(citing Celotex Corp. v.

Catrett. 477 U.S. 317, 322(1986)). '"The mere existence ofa scintilla of evidence' in support of
the non-movant will be insufficient to defeat a summary judgment motion." Transflo Terminal
Servs.. Inc. v. Brooklvn Res. Recovery. Inc.. 248 F. Supp. 3d 397, 399(E.D.N.Y. 2017)(quoting
Liberty Lobbv.477 U.S. at 252).
"In deterniiiiing whether an issue is genuine,'[t]he inferences to be drawn from the
underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the

light most favorable to the party opposing the motion.'" SCW West LLC v. Westport Ins. Corp..
856 F. Supp.2d 514,521 (S.D.N.Y. 2012)(quoting Cronin v. Aetna Life Ins. Co.. 46
F.3d 196,202(2d Cir. 1995)). "[T]he judge's function is not[] to weigh the evidence and
determine the truth ofthe matter but to determine whether there is a genuine issue for trial."
Reddv.N.Y. Div. ofParole. 678 F.3d 166,173-74(2d Cir. 2012)(quoting Libertv Lobbv.477

U.S. at 249). However,"[a] party may not rely on mere speculation or conjecture as to the true
nature ofthe facts to overcome a motion for summaryjudgment," and "[m]ere conclusory

® In New York courts, a defendant seeking dismissal ofa "slip-and-fall" claim on summaryjudgment bears the
"initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or
constructive notice ofits existence for a sufficient length oftime to discover and remedy it." Rodriguez v. White
Plains Pub. Sch.. 826 NY.S.2d 425,426(N.Y. App. Div. 2006). In federal court, however,the evidentiary burden
ofsurviving summaryjudgment is determined by Federal Rule of Civil Procedure 56, not state law. Shimunov v.
Home DepotU.S.A. Inc.. No. ll-CV-5136(KAM),2014 WL 1311561, at »3(E.D.N.Y. Mar.28,20141:Painchault
V. Target Corp.. No.09-CV-1831(NGG)
(RML),2011 WL 4344150, at *3(E.D.N.Y. Sept. 14, 2011).
10

allegations or denials ... cannot by themselves create a genuine issue of material fact where
none would otherwise exist." Hicks v. Baines, 593 F.3d 159,166(2d Cir. 2010)(internal

quotation marks and citation omitted).
2.

Applicable Law

As a threshold issue in this case,the court must determine whether Florida or New York

law should be applied to the claim. "A federal court sitting in diversity ... must apply the choice
oflaw rules ofthe forum state." Licci ex rel. Licci v. Lebanese Canadian Bank. SAL.672

F.3d 155,157(2d Cir. 2012)(internal quotation marks and citation omitted). Under New York
choice oflaw rules, the court must first determine whether "there is an actual conflict between

the laws ofthe jurisdictions involved." Wall v. CSX Trans.. Inc.. 471 F.3d 410,415

(2d Cir. 2006)(quoting In re Allstate Ins. Co. tStolarzl 613 N.E.2d 936,937(N.Y. 1993)).
"Laws are in conflict'[wjhere the applicable law from each jurisdiction provides different
substantive outcomes.'" Int'l Bus. Machs. Corp. v. Liberty Mut. Ins. Co.. 363 F.3d 137,143(2d

Cir. 2004)(quoting Curlev v. AMR Corp.. 153 F.3d 5,12(2d Cir. 1998)). "If no actual conflict
exists, and ifNew York is among the relevantjurisdictions, the court may simply apply New
York law." Licci. 672 F.3d at 157.

The requirements ofshowing negligence in a slip-and-fall case in Florida mirror those

imposed by New York law.^ In Florida, premises liabiUty for claims involving "transitory
foreign substances" are governed by statute, which states that:

' general requirements for asserting negligence claims are also substantially identical under Florida and New
The
York law, requiring plaintiffs to show "(1)that the defendant owed the plaintiffa duty ofcare;(2)that the defendant
breached that duty; and(3)that the plaintiffsuffered damages as a proximate cause ofthat breach." Casiano v.
Target Stores. No.06-CV-6286(NG),2009 WL 3246836, at *3(E.D.N.Y. Sept. 24,2009)
(New York law); see also
Randall v. Target Com.. No. 13-61196-CV,2014 WL 222340, at *2(S.D. Fla. Jan 21,2014)(citing Zivoiinovich v.
Earner. 525 F.3d 1059,1067(11th Cir. 2008)(per curiam))(Florida law). The parties have not disputed the duty
owed by Defendant or any issues ofcausation, but only the element ofbreach as it relates to slip-and-fall accidents.
11

If a person slips and falls on a transitory foreign substance in a
business establishment, the injured person must prove that the
business establishment had actual or constructive knowledge ofthe

dangerous condition and should have taken action to remedy it.
Constructive knowledge may be proven by circumstantial evidence
showing that:

(a) The dangerous condition existed for such a length oftime that,
in the exercise of ordinary care, the business establishment
should have known ofthe condition; or

(b) The condition occurred with regularity and was therefore
foreseeable.

Fl. Stat. § 768.0755(emphasis added). These elements ofFlorida law mirror New York

common law, which requires slip-and-fall plaintiffs to show that the "defendant created the
offending condition [that caused plaintiff's fall] or that defendant had actual or constructive
notice ofthe condition." Gonzalez v. K-Mart Corp.. 585 F. Supp. 2d 501,503(S.D.N.Y. 2008).
The defendant may have "constructive notice" when the "defect...[is] visible and apparent and
... exist[s] for a sufficient length oftime prior to the accident to permit [the defendant's]
employees to discovery and remedy it," Lemonda v. Sutton. 702 N.Y.S.2d 275,276(N.Y. App.
Div. 2000), or when the defendant "had actual notice ofa recurring problem in the location the
accident occurred," Tuthill v. United States. 270 F. Supp. 2d 395,400(S.D.N.Y. 2003).

Comparing these two standards, the court sees no material difference in the law ofthe
two jurisdictions that would alter the substantive outcome ofthe present dispute, nor do the

parties point to any difference between the laws ofthose states that would change the outcome of
the present dispute. Accordingly,the court analyzes Plaintiff's claim xmderNew York law.
3.

Elements ofthe Slip-and-Fall Claim

Defendant contends that Plaintiff has failed to produce evidence supporting a finding that
Defendant had either actual or constructive notice ofthe hazard that caused Defendant's fall.

(Def. Mem.at 4-13.) After examining these claims in turn, the court agrees that Plaintiff has not
12

put forth sufficient evidence that Defendant had constructive notice ofthe hazard, but finds that
evidence in the record presents a genuine issue as to Defendant's actual notice.
a.

Actual Notice

Plaintifffirst argues that Defendant had "actual knowledge" ofthe hazard because, she

claims. Defendant's employees had engaged in an incomplete effort to clean up the liquid prior
to her fall. In support ofthis argument. Plaintiff points to photographs ofthe site of her fall,
which depict paper towels in the liquid, and to Defendant's poHcies stating that accident scenes
should be photographed in an unaltered condition. (PI. Mem. at 8.) Taken together. Plaintiff
contends that this evidence supports an inference that, at the time of her fall. Defendant's

employees were aware ofthe condition and made some effort to clean the spill but left the hazard
in place.

"To prove actual notice, plaintiff must present proofthat defendants were, in fact, aware
ofthe dangerous condition." Nussbaum v. Metro-North Commnter R.R.. 994 F. Supp. 2d 483,

495(S.D.N.Y. 2014)(internal quotation marks and citation omitted). "Defendants have actual
knowledge of a defect ifthey created the condition or received reports ofit such that they have
actual knowledge ofthe defect's existence." Ouarles v. Columbia Sussex Corp.. 997 F. Supp.

327,332(E.D.N.Y. 1998)(citing Torri v. Big V of Kingston. Inc.. 537 N.Y.S. 629,631 (N.Y.
App. Div. 1989)). Even where a defendant has actual notice ofthe condition, however,they

Defendant also contends that there is no evidence that Defendant or any of its employees created the hazardous
condition(Def. Mem. at 5-6), and Plaintiff does not contest this point. The court agrees that there is nothing in the
record to suggest that Defendant was responsible for creating the hazard, and so concludes that Defendant is entitled
to summary judgment on that point. See Cousin v. White Castle Svs.. Inc.. No.06-CV-6335(JMA),2009 WL
1955555, at *7(E.D.N.Y. July 6,2009)(stating that, where there is no testimony that a defendant's employees were

handling liquid in the area ofa spill or were engaged in an activity in that area that might have led to such a spill,
"New York courts routinely grant summary judgment in favor of defendants"(collecting cases)).
13

must be afforded a "reasonable time to correct or warn about its existence." Mercer v. City of

New York.670 N.E.2d 443(Mem.).
In the court's view, Plaintiff has narrowly presented sufficient evidence to make out a
genuine issue regarding Defendant's actual notice ofthe hazard. As Plaintiff notes, Defendant's

own store policies require employees to take a picture ofthe scene of a potential injury claim
"[pjrior to altering the scene." (Policy Document at ECF p.90.) Moreover, Defendant's
employees testified that store staff use paper towels to address spills like those that caused
Plaintiffs injury. (See, e.g.. Matos Dep. 27:14-22; Kokoris Dep. Tr. 10:4-11.) Taken together
with the photographs showing paper towels in the liquid in which Plaintiff slipped, a rational jury
could infer that(1)the photographs depict the area as it appeared at the time Plaintiff slipped;

and(2)the paper towels depicted therein were placed at the scene by Defendant's employees
before Plaintiffs fall, indicating those employees were actually aware ofthe spill.

This does not end the inquiry, however. Plaintiff must also provide evidence that would
allow a reasonable jury to find that Defendant failed to act despite having "reasonable time
within which to correct or warn about[the hazard's] existence." Lewis v. Metropolitan Transp.

Auth.. 472 N.Y.S.2d 368, 371 (N.Y. App. Div. 1984). "[NJotice alone is not enough; the

"The court notes that the video produced by Defendant appears to show an employee ofthe store placing paper
towels on the spill very shortly after Plaintiff's fall and, quite possibly, before the photographs in question were
taken. (Store Video 11:38:35-38.) The video itself is xmclear, however, as to whether any photographs were taken
(and, ifso, when)or whether there were also paper towels on the floor prior to Plaintiffs fall. Accordingly, the
court cannot conclude that Plaintiffs accoimt is "blatantly contradicted by the record, so that no reasonably jury
could believe it," Scott v. Harris. 550 U.S. 372,380(2007), and declines to rule for Defendant on that basis.

Plaintifif also seeks to show that Defendant had actual notice using Lavel's testimony that(1)he arrived only
seconds after Plaintiffs fall;(2)there were paper towels on the floor when he arrived; and (3)the first employee to
arrive in the area after him "arrived at the incident scene with a mop[and] informed him that she had just gone to
fetch the mop to clean the dangerous condition prior to plaintiffs fall." (PI. Mem. at 7.) Defendant objects to this
testimony on the grounds that it is contradicted by the video evidence, which appears to show Lavel arriving several
minutes after Plaintiffs fall and after multiple employees had already arrived on scene and begun cleaning the spill.
(Def. Reply at 7-8.) Because the court finds that other evidence presented by Plaintiffis sufficient to raise an
inference ofactual notice, it does not address this potential discrepancy.
14

plaintiff must also show that defendant had 'a sufficient opportunity, within the exercise of
reasonable care,to remedy the situation' after receiving such notice." Aquino v. Kuczinski,

Vila,& Assocs.. P.C.. 835 N.Y.S.2d 16,19(N.Y. App. Div. 2007). Accordingly, courts
routinely grant summaryjudgment even where the defendant is shown to have actual knowledge

ofthe hazard ifthe plaintiff cannot also make the required showing that, after receiving such
notice, defendant neglected to act within a reasonable time to remedy the condition.

See, e.g..

Gonzalez. 585 F. Supp. 2d at 505; Stasiak v. Sears. Roebuck & Co.. 722 N.Y.S.2d 251,252
(N.Y. App. Div. 2001)(reversing denial ofsummaryjudgment where plaintiff was injured in the
period between defendant's employees noticing spill and returning to address it); Scherer v.
Golub Corp.. 956 N.Y.S.2d 275,276(N.Y. App. Div. 2012)(affirming summary judgment for

defendant where defendant was in the process ofaddressing hazardous condition when plaintiff
fell); ct Hale v.Wilmorite. Inc.. 827 N.Y.S.2d 387,388(N.Y. App. Div. 2006)(affirming
directed verdict for defendant where record contained no "evidence of actual notice ... and the

lapse of a reasonable time for [defendants]to correct the condition or warn ofits existence").
The court again concludes that the record narrowly establishes the existence ofa genuine
issue of material fact as to whether Defendant had a reasonable time to respond to the spill. On

the one hand. Plaintiff points to no evidence in the record as to when Defendant discovered the
spill or began to take remedial efforts. Ordinarily, this lack of evidence would be fatal, as neither
the court nor a reasonable juror could assess whether Defendant's employees acted within a
reasonable time to address the hazards. Ironically, however. Plaintiff is saved by the video

produced by Defendant(and contested by Plaintiff). If, as the court has already concluded,there

"Florida courts apply the same rule in cases of actual notice. See, e.g.. Gaidvmowicz v. Winn-Dixie Stores. Inc..
371 So.2d 212,214(Fla. Dist. Ct. App. 1979)
("We conclude that with only one minute of actual notice,[defendant]
did not have a sufficient opportunity to correct die dangerous condition and,therefore, could not be liable on the
basis ofactual notice.").
15

is a reasonable inference that the paper towels depicted in the liquid were placed there by a store
employee prior to Plaintiffs fall, then the fact that this partial clean-up is not depicted on the

video gives rise to the reasonable inference it took place outside ofthe period depicted in the
video—more than an hour prior to the slip-and-fall. The passage of more than an hour
between Defendant's actual notice ofthe hazard and Plaintiff's fall, in turn, would provide

Defendant with more than a "sufficient opportunity, within the exercise ofreasonable care, to
remedy the situation." Aquino. 835 N.Y.S.2d at 19.

Accordingly, Defendant's motion for summary judgment is denied as to Plaintiffs theory
that Defendant had actual notice ofthe hazardous condition that caused her injury.
b.

Constructive Notice

Plaintiff also presents the alternative theory that Defendant had constructive notice ofthe
hazardous condition that caused her injury. Plaintiff presents two different theories of
constructive notice: first, that the presence ofthe liquid was foreseeable because it resulted from

a regular occurrence; and second,that the hazard was present in the location for so long that
Defendant, in the exercise of ordinary care, should have known ofits existence. The court
examines these arguments separately.
i.

Regularity

Plaintiff first argues that Defendant had constructive notice based on the "regularity" with
which similar incidents occurred. In particular, Plaintiff points to Defendant's employees'

estimates that there were ten slip-and-fall incidents in the store in question per year(Kramlich
Dep. Tr. 25:19-26:11) and that they had seen urine on the floor ofthe store on other occasions

(Kokoris Dep. Tr. 10:17-11:3: see also Lavel Dep. Tr. 21:18-22:18).
Constructive notice of a specific hazardous condition may be found where a defendant is
shown to have "actual notice ofa recurring dangerous condition." Fav v. Bass Hotels & Resorts.
16

Inc.. No. OO-CV-9107(MBM),2003 WL 21738967, at *6(S.D.N.Y. July 28,2003)(citing

Padula V. Big V Supermarkets. Inc.. 570 N.Y.S.2d 850, 851 (N.Y. App. Div. 1991)). A
defendant's general awareness that dangerous conditions exist on the premises, unaccompanied

by awareness ofthe presence ofsuch hazards in a "distinctly identifiable area[]," is insufficient
to provide constructive notice under this standard. Rilev v. Battery Place Car Park. 210
F. App'x 76,77(2d Cir. 2006)(summary order);^Yearwood v. Ciishman & Wakefield. Inc..

742 N.Y.S.2d 661,662(N.Y. App. Div. 2002)(holding that awareness ofrecurring water in the
lobby was not "sufficient to establish constructive notice ofthe particular wet condition on the
marble floor which caused the plaintiffto slip"). While this does not require plaintiffto
"establish the defendant's knowledge ofthe exact [hazard] on which the plaintifffell," it does

require a showing that "defendant had ...knowledge ofthe particular dangerous condition that
is 'qualitatively different firom a mere 'general awareness' that a dangerous condition may be
present." Gonzalez v. Wal-Mart Stores. Inc.. 299 F. Supp. 2d 188,193(S.D.N.Y. 2004)
(citations omitted).
The record here is insufficient to establish the existence of a distinctive recurring

condition to merit charging Defendant with constructive notice ofthe hazard that caused

Plaintiffs injury. At most. Plaintiff presents evidence suggesting that customers slipped in the
store with some regularity, and that some ofthe employees may have been aware of a customer
that occasionally urinated in the store. Nothing in the record shows that Defendant or its

employees were aware that certain areas in the store presented a greater risk ofcustomer slip-

17

and-falls^"^ or experienced a greater volume ofliquid accumulation on the floor. Instead,the
evidence establishes at most that Defendant was generally aware ofa risk that customers in the
store in question might fall, or that a certain hazard might arise at irregular, unpredictable times
and locations within the store. Defendant cannot be fairly charged with having "actual
knowledge of a recurring dangerous condition" based solely on evidence that it was aware of a
generalized category ofrisks that could occur within its store.
ii.

Passage of Time

Plaintiff next argues that evidence in the record suggests the spill had been on the floor
for a sufficient length oftime to place Defendant on constructive notice of its existence. (PI.
Mem. at 11-16.) In order to give rise to constructive notice on this basis, the hazard in question
"must be visible and apparent and it must exist for a sufficient length oftime prior to the accident

to permit defendant's employees to discover and remedy it." Gordon v. Am. Museum ofNat.
History. 67 N.Y.2d 836, 837(1986); accord Bvone v. Target Corp.. 548 F. App'x 709, 710

(2d Cir. 2013)(summary order). "The mere existence of a liquid substance ... where the

accident allegedly took place does not establish constructive notice." Shimonov v. Home Depot
U.S.A..Inc..No.ll-CV-5136(KAM),2014 WL 1311561, at *5(E.D.N.Y. Mar. 28,2014)

(quoting Hammond-Warner v. United States. 797 P. Supp. 207,211 (E.D.N.Y. 1992)). Instead,

in order to merit a finding of constructive notice, a "plaintiff must present evidence ofthe length
oftime the condition existed prior to the alleged fall." Hammond-Wamer. 797 F. Supp. at 211;

see also Lionel v. Target Corp.. 44 F. Supp. 3d 315,320(E.D.N.Y. 2014)("[T]here must be

Plaintiff points to one statement m the testimony of one of Defendant's employees indicating that the area in
which Plaintifffell—the "action alley"—is"an area that is most traversed by customers." (Kramlich Dep. Tr.

38:10-20.) Neither that employee nor any odier individual suggested the "action alley" was particularly susceptible
to spills(or to public urination), however, and this testimony does not provide a reasonable basis from which to infer
that Defendant was aware of a recurring hazard in that particular area.
18

evidence in the record establishing 'either how the substance got there or how long it was there
before the fall.'"(citation omitted)).

In this case. Plaintiff has presented no evidence that tends to estabhsh the length oftime
that the liquid was on the floor or exactly how it came to be there. The only identified evidence
to which Plaintiff points that could be suggestive of duration is the presence ofpaper towels in
the liquid. As discussed above in Section TLB.3.a. Plaintiff has presented sufficient evidence

based on the presence ofthe paper towels to allow the jury to infer that Defendant's employees
in fact observed the liquid. The same argument does not hold up, however,ifPlaintiff seeks to
draw the broader inference that the presence ofpaper towels indicates the liquid on the groxmd

for long enough that it should have been discovered by Defendant's employees. Even accepting
that the paper towels were placed in the spill before Plaintiff arrived, that fact alone provides no

indication as to when they were placed, or how long the hazard had been in that spot prior to
Plaintiffs fall. See Lionel. 44 F. Supp. 3d at 323 (finding the presence of a "wet paper towel" at

the scene ofthe plaintiff's fall to be insufficient to support constructive notice). Put differently,
to the extent that Plaintiff argues the presence ofpaper towels in the liquid, divorced Jfrom
questions of who placed them,is sufficient to indicate Defendant should have been on notice of

the hazard,the court finds that inference to be speculative and unreasonable.^^

Plaintiff also points to a written statement from one ofDefendant's employees that the floor surface was not
"clean."(Ex. 1 to PI. Mot.(Dkt. 31-1)at ECF p.4("CMI Incident Rep.").) She suggests that this gives rise to an
inference as to how long the liquid was on the floor prior to her fall, arguing that the fact the liquid was "unclean"
suggests that it been on the floor for a longer period oftime.(PI. Mem. at 14). The court does not need to address

the merits ofthis suggested inference, however, as it appears in the first instance to be based on a misreading ofthe
cited report: the report does not indicate that the liquid was dirty, but rather that the floor was dirty because it had
liquid on it. (CMI Incident Rep.)

Plaintiffalso raises the separate but related argument that Defendant failed to conduct a reasonable inspection of
the store and so may be held liable under a negligence theory based on this failure to inspect. (PI. Mem.at 16-17.)
Tuthill, 270 F. Supp. 2d at 400("[T]he issue of actual or constructive notice is irrelevant where defendant had a

duty to conduct reasonable inspection ofthe premises but failed to do so.") In support ofthis argument. Plaintiff
points to testimony that Defendant's employees were unable to say when &e area in which Plaintiff fell was
inspected on the relevant day. (PI. Mem. at 16-17.) This argument fails for two reasons. First, to the extent that
19

Accordingly, Defendant's motion for summary judgment is granted as to Plaintiff's

theory that Defendant was on constructive notice ofthe hazard that allegedly caused Plaintiffs
injury.
in.

CONCLUSION

For the foregoing reasons. Defendant's motion for summaryjudgment(Dkt.26)is
GRANTED IN PART and DENIED IN PART as follows: Defendant's motion for summary

judgment on Plaintiffs theory that Defendant had constructive notice ofthe dangerous condition
is granted. Defendant's motion for summaryjudgment on the issue of actual notice is denied.

Plaintiffs motion for sanctions for spoliation ofevidence(Dkt. 30)is DENIED. The parties are
directed to contact the chambers of Magistrate Judge Lois Bloom to schedule the filing of a Joint
Pretrial Order in accordance with this court's Individual Rules, to be electronically filed no later

than April 1,2018. The parties are further directed to confer and to contact the court's Deputy at
718-613-2545 to set a trial date.
SO ORDERED.

s/Nicholas G. Garaufis
NICHOLAS G. GARAUF

Dated: Brooklyn, New York

January

,2018

United States District Judge

Plaintiffsuggests Defendant breached its duty because reasonable inspections would have identified the hazard,the
argument fails for the same reason cited above: Plaintiffpresents no evidence to suggest how long the hazard was
present, and so there is no basis to find that Defendant breached its duty in failing to notice that hazard. See Lionel.
44 F. Supp. 3d at 321-22("PlaintifPs evidence is insufficient to establish the reasonable inference that Defendant

breached [its duty to inspect for and eliminate potential hazards], since there is no evidence in the record indicating
how long the food container lid remained on the floor."). Moreover,testimony by Defendant's employees indicates
that they did,in fact, conduct regular inspections ofthe store for potential hazards. (See, e.g.. Matos Dep. Tr.
16:25-17:8.) Plaintiff does not refute this point, but only points to testimony by employees that they are unable to
recall when the store was inspected on the day in question. This inability to recall the specifics ofthe inspection
schedule does not, however,suggest that no such inspections occurred, and Plaintiff presents no evidence to suggest
that is the case.

20