Chaney v. Starbucks Corporation

Filing 30

OPINION & ORDER: For the foregoing reasons, the Court grants Starbucks's summary judgment motion. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 19, and to close this case. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 6/23/2015) (kl)

I.

Background
A.

Factual Background 1

The material facts of this case are not in dispute. On August 9, 2013, Chaney went to eat
lunch at a Starbucks café located at 3503 Johnson Avenue in the Bronx, New York. Def. 56.1
¶ 4. He worked nearby and visited this particular Starbucks location about two to three times per
week. Id. ¶¶ 5–6.
As Chaney entered, he noticed that a customer in the seating area had plugged a white
electrical charger 2 into the wall. Id. ¶¶ 16–17. The charger consisted of a cord attached to a
small, white square, which lay flat upon the café’s orange tile floor. Id. ¶ 19. 3 Chaney did not
mention the charger to the customer, nor did he report it to any Starbucks employee. Id. ¶ 18. 4

1

This account is drawn from the parties’ submissions, including Chaney’s Complaint (Dkt. 1,
Ex. A.); Starbucks’s Answer (Dkt. 1, Ex. B); Starbucks’s memorandum of law in support of its
motion for summary judgment (Dkt. 20) (“Starbucks Br.”); the Declaration of George N.
Tompkins III (Dkt. 21) (“Tompkins Decl.”), which attaches Chaney’s deposition (“Chaney
Dep.”); Starbucks’s Local Rule 56.1 Statement of Material Facts (Dkt. 22) (“Def. 56.1”); the
Declaration of Scott Wolinetz (Dkt. 24) (“Wolinetz Decl.”), which includes the deposition of
Camille Williams (“Williams Dep.”); Chaney’s memorandum of law in opposition to
Starbucks’s motion for summary judgment (Dkt. 25) (“Chaney Br.”); and Starbucks’s reply
memorandum (Dkt. 29) (“Starbucks Reply Br.”). Chaney did not submit a Rule 56.1 Statement,
and does not contest any of the facts in Starbucks’s Rule 56.1 statement, in which the relevant
facts are based on Chaney’s deposition testimony. See Chaney Br. 1 (“Plaintiff does not contest
the facts as set forth by Defendant via the testimony of Plaintiff in this action.”).
2

The parties alternatively use the terms “iPhone” and “computer” when describing the device
associated with the charger.

3

Chaney estimates that the white square measured half an inch by an inch and three quarters by
an inch and three quarters. Chaney Dep. 39. The record is silent as to how far above the floor
the outlet was situated.

4

Chaney did not seek to depose a Starbucks corporate representative under Federal Rule of Civil
Procedure 30(b)(6) and did not notice the deposition of any Starbucks employee except a single
barista, Camille Williams, employed at the Starbucks café at issue. Williams testified that she did
not recall the incident involving Chaney, nor whether she had worked that day, and that she and
other baristas generally were not responsible for maintaining the seating area. See Williams Dep.
2

Chaney walked past the seating area, proceeding to the counter, where he ordered lunch
(an egg salad sandwich and an Americano beverage). Def. 56.1 ¶¶ 8–9. He brought his lunch
over to a table to eat, and he testified that he did not have to step over the cord in the process of
seating himself. Id. ¶¶ 11, 21. The cord remained by the wall, situated about 12 to 14 inches
away from his table. Tompkins Decl., Ex. C (“Chaney Dep.”), at 40.
After about 20 minutes, Chaney finished eating and got up from his table. Def. 56.1
¶¶ 12–13. As he made his way toward the exit, he stepped on the white square attached to the
cord, causing him to lose his balance and fall. Id. ¶ 14. At his deposition, Chaney was unable to
explain why, having earlier seen the white square, he had not stepped over it or otherwise
avoided it. Id. ¶ 26. Chaney remained on the floor for about three minutes, after which another
customer, Nicole Suozo, asked him if he was “okay.” Chaney Dep. 44–48. Chaney responded
that he was, and then went to the bathroom to “get [himself] together.” Id. at 48.
Upon returning, Chaney approached the counter and told two baristas, including Camille
Williams, about the incident. Id. They offered him a cup of coffee, which he declined. Id. at
48–52. After waiting about five to 10 minutes, he left. Id. at 52. He did not complete any
paperwork or tell any Starbucks representative, apart from the two baristas, about the incident.
Id. at 52–53. Chaney testified that he took a photo of the charger after the incident, which he
stored on his computer. Id. at 95. However, this photo is not part of the record, and at argument,
Chaney’s counsel stated that he does not know whether it still exists. 6/9/15 Tr. 28–29.

14, 18. Nor did Starbucks, in moving for summary judgment, submit any declarations as to
policies or practices with respect to the customer seating area. As a result, the record is silent as
to whether Starbucks in general has a policy for monitoring or maintaining customer seating
areas in its locations, including with respect to the placement of customers’ chargers; or which
personnel, if any, had responsibility for monitoring or maintaining that area at the location in
question.
3

Chaney then drove to Shire Realty, where he worked as a personal assistant. Chaney
Dep. 11, 55. A co-worker took him to the emergency room at the New York-Presbyterian
Hospital, where he underwent a precautionary MRI exam. Id. at 55–58. He was immediately
discharged, but he returned to the emergency room three days later when he experienced more
pain. Id. at 60–62. The doctor prescribed him Naproxen, a pain relief medication, but did not
recommend further treatment. Id. at 62–63.
Chaney claims that, as a result of the fall, he sustained back, neck, and head injuries,
including herniated discs, multiple forms of traumatic brain injury, severe migraines, headaches,
dizziness, and neck pain. Dkt. 1, Ex. E. He claims that he has sought medical attention from the
New York-Presbyterian Hospital, Lenox Hill Radiology, and Maximum Orthopaedics and Sports
Medicine, and that he was confined to his home for a week after the incident. Id. Chaney seeks
special damages of $100,000, including for future medical care. Id.
B.

Procedural History

On January 30, 2014, Chaney filed this negligence action in New York State Supreme
Court for Bronx County, claiming that Starbucks neglected its duty to properly maintain the
seating area, causing his injuries. Dkt. 1, Ex. A. On March 26, 2014, Starbucks answered,
denying liability. Dkt. 1, Ex. B. On August 28, 2014, Starbucks removed the case to this Court,
based on diversity jurisdiction. Dkt. 1.
The parties took limited discovery. Starbucks deposed only Chaney, believing that his
admissions, including that he saw the charger in the seating area before the incident, establish
that the charger was open and obvious and not inherently dangerous, so as to preclude
Starbucks’s liability for negligence. Chaney deposed only Williams, who testified that she did
not recall the incident or whether she had worked on the day in question. See Williams Dep. 14,

4

18. Neither party deposed Suozo, who, Chaney states, witnessed the incident; adduced evidence
as to Starbucks’s policies in general, or the practices at the location in question, with respect to
supervision of the customer seating area or similar incidents, if any; or submitted tangible
evidence, including a floor plan of the Starbucks location. 5
On April 13, 2015, after discovery, Starbucks moved for summary judgment. Dkt. 19.
Starbucks filed a declaration, Dkt. 21, and a memorandum of law in support of its motion, Dkt.
20 (“Starbucks Br.”), arguing that it had no duty to protect Chaney from an open and obvious
condition, which, as a matter of law, was not inherently dangerous. On May 15, 2015, Chaney
filed a declaration, Dkt. 24, and a memorandum of law in opposition to the motion, Dkt. 25
(“Chaney Br.”), arguing, inter alia, that whether the condition was open or obvious is relevant
only to damages, and noting that Starbucks had not established that it lacked actual or
constructive notice of the ostensibly dangerous condition (the charger, situated in the customer
seating area) that allegedly caused his injury. Id. On June 1, 2015, Starbucks filed a reply brief.
Dkt. 29 (“Starbucks Reply Br.”). On June 9, 2015, the Court held argument. See 6/9/15 Tr.
II.

Discussion
A.

Applicable Legal Standards
1.

Summary Judgment Standard

To prevail on its summary judgment motion, the moving party must “show[] that there is
no genuine dispute as to any material fact and that [it] is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question
of material fact. In making this determination, the Court must view all facts “in the light most

5

There is also no video footage of the incident. Chaney filed suit nearly six months afterwards;
Starbucks represents that “the system utilized at the store automatically overwrites video every
10 days.” Dkt. 11.
5

favorable” to the non-moving party. Holcomb v. Iona Coll., 52 F.3d 130, 132 (2d Cir. 2008); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To survive a summary judgment motion, the opposing party must establish a genuine
issue of fact by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1);
see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “A party may not rely on mere
speculation or conjecture as to the true nature of the facts to overcome a motion for summary
judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation and internal quotation
marks omitted). Only disputes over “facts that might affect the outcome of the suit under the
governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, the
Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236
(2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).
2.

Legal Duty Standard

To prevail on a negligence claim, the plaintiff must establish “(1) a duty owed by the
defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.”
Solomon ex rel. Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985); see also Akins v.
Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (1981). Only the first element, the existence of a
legal duty, is in dispute on this summary judgment motion. 6

6

At argument, Starbucks conceded that, if its summary judgment motion directed to the element
of a legal duty were denied, it would be a factual question for the jury whether it had breached
that duty. See 6/9/15 Tr. 17–18. That concession appears correct, with neither party having
taken any discovery as to the steps, if any, that the Starbucks location at issue took to ensure that
the customer seating area was safe.
6

Generally, under New York law, “landowners owe people on their property a duty of
reasonable care under the circumstances to maintain their property in a safe condition.” Tagle v.
Jakob, 97 N.Y.2d 165, 168 (2001). However, “a landowner has no duty to protect or warn
against an open and obvious condition which, as a matter of law, is not inherently dangerous.”
Varon v. N.Y.C. Dep’t of Educ., 998 N.Y.S.2d 433, 434 (2d Dep’t 2014). In such cases, the
condition “cannot fairly be attributed to any negligent maintenance of the property” on the
landowner’s part. Cupo v. Karfunkel, 767 N.Y.S.2d 40, 43 (2d Dep’t 2003). On Starbucks’s
motion for summary judgment directed to the existence of a duty, the Court therefore focuses on
two questions: Whether the condition that Chaney now complains of was (1) open and obvious,
and (2) not inherently dangerous.
As to the first question, “open and obvious is generally fact-specific and thus usually a
jury question, [but] a court may determine that a [condition] was open and obvious as a matter of
law when the established facts compel that conclusion, and may do so on the basis of clear and
undisputed evidence.” Tagle, 97 N.Y.2d at 169 (internal citations omitted). To establish that a
condition was “open and obvious,” the landowner must demonstrate “that the condition . . . was
readily observable by the plaintiff employing the reasonable use of his senses.” Powers v. 31 E
31 LLC, 998 N.Y.S.2d 23, 25 (1st Dep’t 2014). Such a determination “cannot be divorced from
the surrounding circumstances.” Mazzarelli v. 54 Plus Realty Corp., 864 N.Y.S.2d 554, 555 (2d
Dep’t 2008).
As to the second question, the “inherently dangerous” inquiry is also often a jury
question, which “depends on the totality of the specific facts of each case.” Russo v. Home
Goods, Inc., 990 N.Y.S.2d 95, 97 (2d Dep’t 2014). However, the landowner may establish a
prima facie entitlement to judgment as a matter of law where the evidence shows that the

7

condition was “not inherently dangerous.” Varon, 998 N.Y.S.2d at 434. If, in response, the
plaintiff fails to raise “triable issues of fact as to whether the [condition] was inherently
dangerous,” the Court may resolve this issue as a matter of law. Russo, 990 N.Y.S.2d at 97.
In assessing inherent dangerousness, the Court may consider factors including the
inherent nature of the condition at issue, evidence of prior accidents, whether there is a statutory
violation, the frequency of inspections, photographs depicting the condition, and expert
testimony. See, e.g., Abraido v. 2001 Marcus Ave., LLC., 4 N.Y.S.3d 43, 44 (1st Dep’t 2015)
(holding curb not inherently dangerous based on daily inspections of its condition, as well as lack
of prior complaints); Oldham-Powers v. Longwood Cent. Sch. Dist., 997 N.Y.S.2d 687, 689 (2d
Dep’t 2014) (holding pole vault box inherently dangerous based on expert testimony that the
owner was required to either cover it or post warning signs); Burke v. Canyon Road Rest., 876
N.Y.S.2d 25, 26 (1st Dep’t 2009) (holding restaurant’s entranceway not inherently dangerous
based on a lack of complaints to the general manager, previous accidents, or code violations);
Cardia v. Willchester Holdings, LLC, 825 N.Y.S.2d 269, 270 (2d Dep’t 2006) (holding parking
lot divider not inherently dangerous based on photographs depicting its condition at the time of
the injury).
Where a landowner fails to establish that the condition was “not inherently dangerous,”
summary judgment is to be denied, and the case is to proceed to trial, even if the condition is
found open and obvious, because “the open and obvious nature of the condition is relevant [only]
to the issue of the plaintiff’s comparative negligence.” Cupo, 767 N.Y.S.2d at 43.

8

B.

Analysis

The Court grants Starbucks’s summary judgment motion because, on the evidence
adduced, the condition at issue was open and obvious and could not be found by a jury to be
inherently dangerous.
As to the first point, a court may determine whether a condition was “open and obvious
as a matter of law when the established facts compel that conclusion.” Tagle, 97 N.Y.2d at 169
(internal citations omitted). Chaney’s brief did not contest this issue, Chaney Br. 1, presumably
because Chaney himself had admitted seeing the charger’s white square upon entering the
Starbucks café. Chaney Dep. 39. Further, at argument, Chaney’s counsel conceded that the
white charger was indeed “open and obvious.” See 6/9/15 Tr. 33.
In any event, even putting aside counsel’s concession, the evidence uniformly supports
that the relevant condition, the white charger square offset against the store’s orange-colored
floor, was “open and obvious.” Chaney Br. 3–4; Starbucks Br. 3. Virtually any patron in
Chaney’s position would have readily noticed the charger by “making reasonable use of his
senses,” as there was a stark color contrast between the white charger and the orange tile floor.
See Def. 56.1 ¶ 19; Chaney Dep. 40; see generally Miller v. Costco Wholesale Corp., 4 N.Y.S.3d
281, 282–83 (2d Dep’t 2015) (holding that wheel stop that caused plaintiff’s injury was “open
and obvious” based on its “contrast to the color of the pavement to which it was affixed”); Gallo
v. Hempstead Tpk., LLC, 948 N.Y.S.2d 660, 661 (2d Dep’t 2012) (similar).
The fact that Chaney himself saw the charger upon entering the property, see Def. 56.1
¶ 17; Chaney Dep. 40, although not dispositive of openness and obviousness, is germane: In
other cases in which the plaintiff has admitted observing beforehand the condition that caused his
injury, courts have considered that factor in finding the condition “open and obvious.” See, e.g.,

9

Bernth v. King Kullen Grocery Co., 830 N.Y.S.2d 222, 222 (2d Dep’t 2007) (holding that an
empty merchandise cart in the aisle of a supermarket was “open and obvious” where plaintiff
testified he had noticed it shortly before accident); Bellini v. Gypsy Magic Enters., Inc., 978
N.Y.S.2d 73, 75 (2d Dep’t 2013) (holding that wheel stop in a parking lot was “open and
obvious” where plaintiff testified she had noticed it shortly before accident).
The Court therefore finds the condition here to have been open and obvious.
As to the second prong of the duty analysis, a court may determine whether a condition
was “inherently dangerous” as a matter of law when the evidence compels a single conclusion.
See, e.g., Varon, 998 N.Y.S.2d at 434. Such is the case here.
The evidence on which Starbucks, the moving party, relies is undisputed: Indeed, it
comes from the testimony of Chaney, the only one of the two witnesses to be deposed who
recalled the incident. Chaney testified that the white charger square on which he stepped visibly
contrasted with the orange tile floor, that he was aware of it upon entering the property, and that
he was able to avoid stepping on it when he entered the seating area. Def. 56.1 ¶¶ 16–22;
Chaney Dep. 39–40. And, although the parties’ minimalist approach to discovery—including
declining to generate a record of the floor plan of the store, see 6/9/15 Tr. 6–7—has left
regrettably unrecorded the offending charger’s precise placement in the Johnson Avenue
Starbucks, Chaney’s testimony establishes that the charger was not in a walkway, or in front of a
service counter, or any other place where a customer might expect the floor to be unobstructed.
See Chaney Dep. 38. Rather, Chaney testified, the charger was close to or alongside the wall in
the customer seating area, an area where customers, seated at tables, may plug in such devices.
See id. at 38–40.

10

The charger was thus in a position on the floor where a customer would reasonably
expect to come across a charger, a point that Chaney himself acknowledged. See Chaney Dep.
39. Such chargers today are in fact ubiquitous in public places in this country, including in cafés,
eateries, and other informal establishments like Starbucks that by design invite customers to sit
and work on laptops or handheld devices while they drink, eat, or converse. The Court can fairly
take judicial notice of this phenomenon. 7 A customer in the seating area of such an
establishment would have every reason to expect charger cords belonging to other customers to
be in use, and potentially to rest on the floor. For that matter, such a customer would reasonably
expect to find, on the floor of the seating area, any number of small personal items (e.g., purses,
knapsacks, shopping bags, briefcases, food wrappers, coffee cups, etc.) that another customer
may have carried in or bought at the café itself. And, as Chaney further acknowledged, he was

7

See Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 106 n.20 (2d Cir. 2014) (taking judicial
notice of the popular architectural styles of homes); Willis v. Home Box Office, No. 00 Civ. 2500
(JSM), 2001 WL 1352916, at *2 (S.D.N.Y. Nov. 2, 2001), aff’d, 57 F. App’x 902 (2d Cir. 2003)
(summary order) (taking judicial notice that modern forms of entertainment commonly depict
unethical characters); Antares Mgmt. LLC v. Galt Global Capital, Inc., No. 12 Civ. 6075 (TPG),
2013 WL 1209799, at *1 n.1 (S.D.N.Y. Mar. 22, 2013) (taking judicial notice of “Facebook
Inc.’s international popularity and widespread influence”); Golden Krust Patties, Inc. v. Bullock,
957 F. Supp. 2d 186, 199 (E.D.N.Y. 2013) (taking judicial notice that New York is densely
populated, and therefore most consumers in the metropolitan area tend to travel only short
distances to eat at fast food establishments); Jeri-Jo Knitwear, Inc. v. Club Italia, Inc., No. 98
Civ. 4270 (RO), 1999 WL 500146, at *2 (S.D.N.Y. July 15, 1999) (taking judicial notice “of the
fact that casual clothing is increasingly unisex”); Orto Conserviera Cameranese d Giacchetti
Marino & C. s.n.c. v. Bioconserve, s.r.l., No. 97 Civ. 6638 (JSM), 1999 WL 47258, at *2
(S.D.N.Y. Feb. 3, 1999), aff’d sub nom. Orto Conservia Cameranese Di Giacchetti Marino & C.,
S.N.C. v. Bioconserve S.R.L., 205 F.3d 1324 (2d Cir. 2000) (taking judicial notice that “those
who are interested in gourmet foods are often people who travel internationally or, at least, keep
abreast of international developments in the food market”); see also Erie Cnty. Bd. of Soc.
Welfare on Complaint of McCarter v. Holiday, 220 N.Y.S.2d 679, 680 (4th Dep’t 1961)
(“[C]ourts will take judicial notice of the normal things of life,” and “[a]nything out of the
ordinary must be proved.”); cf. Hotel Emps. & Rest. Emps. Union, Local 100 of N.Y., N.Y. &
Vicinity, AFL CIO v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 540 n.1 (2d Cir.
2002) (taking judicial notice of the history of the construction of Lincoln Center).
11

not required to step in the charger’s path to exit the Starbucks location at issue; an alternative
path around the charger was available. Chaney Dep. 36–37; see generally Saltz v. Wal-Mart
Stores, Inc., No. 10 Civ. 4687 (NRB), 2012 WL 811500, at *9 (S.D.N.Y. Mar. 7, 2012), aff’d,
510 F. App’x 68 (2d Cir. 2013) (summary order) (holding that an open and obvious condition
was not inherently dangerous where an alternative path was available).
To permit a jury to find that the charger was inherently dangerous under these spare and
unremarkable circumstances—where the charger was conspicuous against the store’s orange
floor, and where no evidence of dangerousness has been elicited beyond the fact that the charger
rested on a floor where it could potentially be stepped upon—would effectively permit a finding
of inherent dangerousness as to virtually any readily visible item of personal property, food, or
litter that a customer may have placed on the floor in the seating area of a café and on which a
person could potentially trip. The Court declines to so find. See Tagle, 97 N.Y. 2d at 168
(courts may consider “reasonable expectations of the parties and society generally” in
determining whether a landowner’s duty exists); Matteo v. Kohl’s Dep’t Stores, Inc., No. 09 Civ.
7830 (RJS), 2012 WL 760317, at *7 (S.D.N.Y. Mar. 6, 2012), aff’d, 533 F. App’x 1 (2d Cir.
2013) (summary order) (whether condition was inherently dangerous may depend on whether
customers reasonably expected to encounter it in the location at issue); see also Rochford v.
Woodloch Pines, Inc., 824 F. Supp. 2d 343, 350 (E.D.N.Y. 2011) (holding that steps on a golf
course were not inherently dangerous when plaintiff, who had experience as a golfer, reasonably
should have expected them to be slippery in the rain); Glassberg v. Staples the Office Superstore
E., Inc., No. 08 Civ. 2132 (KAM) (JMA), 2010 WL 3924682, at *5 (E.D.N.Y. Sept. 13, 2010),
report and recommendation adopted, 2010 WL 3909206 (E.D.N.Y. Sept. 29, 2010) (holding that

12

stocking cart, of the sort commonly used in stores, was not inherently dangerous when used in a
way consistent with general customer expectations).
Although the parties have not cited—and the Court has not found—any case precisely
matching these facts, the Court’s holding here that the charger on the Starbucks’s seating area
floor was not inherently dangerous further accords with a line of cases holding that cords and
cables are “not inherently dangerous” when situated in areas where a person would ordinarily
expect to find them. See, e.g., Holdos v. Am. Consumer Shows, Inc., 937 N.Y.S.2d 303, 304 (2d
Dep’t 2012) (holding that yellow and blue cable cover, “over which the plaintiff allegedly
tripped and fell while attending a trade show,” was not inherently dangerous); Booker v. Ky. Ctr.
for Arts Corp., No. 05 Civ. 841 (MR), 2006 WL 2578303, at *1 (Ky. Ct. App. Sept. 8, 2006)
(holding that cords over which plaintiff tripped while exiting movie theater were not inherently
dangerous); Rhodes v. Detroit Med. Ctr., No. 262787, 2006 WL 355249, at *1 (Mich. Ct. App.
Feb. 16, 2006) (holding that cord next to hospital bed was not inherently dangerous, especially
when the “evidence show[ed] there was ample room to avoid the cord” and “objectively viewed,
the existence of a cord next to a hospital bed does not pose a uniquely high likelihood of harm”);
Dunlop v. Reynolds, 204 So. 2d 754, 754–55 (Fla. Dist. Ct. App. 1967) (holding that telephone
cord was inherently dangerous only when a customer had moved it from the area where it was
usually placed).
Chaney has not pointed to any evidence creating an issue of fact that could disturb this
outcome. His brief stated that he “does not contest the facts as set forth” by Starbucks, Chaney
Br. 1; and in the only deposition Chaney’s counsel took, Williams testified that she did not recall
the August 9, 2013 incident, or whether she had worked that day, Williams Dep. 14. Chaney
asserts that it is “axiomatic that . . . chargers left lying on the floor of a seating area in a public

13

and heavily trafficked retail coffee shop such as Starbucks are inherently dangerous,” Chaney Br.
4, but this ipse dixit misstates New York law. The potential for an accident to occur does not
make a situation inherently dangerous; indeed, that a condition “may pose a danger under certain
circumstances is insufficient by itself to establish that a particular instance of such a condition
was inherently dangerous.” Glassberg, 2010 WL 3924682, at *5; see also Piacquadio v. Recine
Realty Corp., 84 N.Y.2d 967, 969 (1994) (“[A] ‘general awareness’ that a dangerous condition
may be present is legally insufficient to constitute notice of the particular condition that caused
plaintiff’s fall . . . .”) (citing Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 838
(1986)).
Separately, Chaney invokes the common-law doctrine of “momentary forgetfulness,”
Chaney Br. 4, but this doctrine does not gain him traction on this motion. Chaney’s point is that,
while he noticed the charger when he entered the Starbucks, he may have forgotten about it at the
time he got up to leave. Under the doctrine of momentary forgetfulness, the law, rather than
categorically holding against a plaintiff for failing to act on his knowledge, leaves it “for the trier
of fact to determine ‘whether the failure to have the danger in mind was the result of such poor
memory or such inattentiveness on the part of the injured person as to charge him with conduct
falling below the standard of a reasonably prudent man.’” Flynn v. City of New York, 478
N.Y.S.2d 666, 668 (2d Dep’t 1984) (quoting Rugg v. State, 131 N.Y.S.2d 2, 6 (3d Dep’t 1954)).
But, for several reasons, the “momentary forgetfulness” doctrine does not avail Chaney
on Starbucks’s motion for summary judgment. First, in his deposition, Chaney did not testify
that he had forgotten about the charger when he arose to leave. Second, even assuming that such
a memory lapse could be inferred from the fact (if found) of Chaney’s having stepped on the
charger, it is unclear whether the momentary forgetfulness doctrine still applies in New York, at

14

least at the liability stage. 8 Third, and most important, Chaney’s memory lapse, and this
doctrine, simply do not bear on the issue of inherent dangerousness. See Schulman v. Old
Navy/The Gap, Inc., 845 N.Y.S.2d 341, 342 (1st Dep’t 2007) (holding summary judgment proper
when plaintiff tripped over a bracket covered with clothing, which she had known was there but
did not notice at the time she came into contact with it).
Finally, at argument, Chaney faulted Starbucks for its anemic efforts to develop the
factual record. 6/9/15 Tr. 21–23. It is fair to say that neither party here was energetic in
discovery. The Court would have particularly benefited from a clearer understanding of the
layout of the Starbucks café at issue, where precisely Chaney sat, and where the charger was
situated immediately before Chaney fell. Either party could have elicited this testimony from
Chaney. The Court also was struck by the absence of any discovery as to whether any accidents
similar to Chaney’s have ever occurred at the Johnson Avenue site.
However, for the reasons reviewed above, the evidence in the record did not leave any
issue of material fact as to either openness and obviousness or inherent dangerousness. In the
absence of an evidentiary basis on which a trier of fact could find for Chaney on either of these
elements, Chaney cannot resist Starbucks’s motion for summary judgment by imagining the
possibility that as-yet undiscovered facts might rescue his claim. See Meiri v. Dacon, 759 F.2d

8

See O’Neill v. Spritzer, 553 N.Y.S.2d 392, 393 (1st Dep’t 1990). The Appellate Division,
Second Department, has described the “momentary forgetfulness” doctrine as:
a vestigial anachronism derived from a system of injury compensation which no
longer is operative in this State. Its underpinnings have been eroded by the
introduction of a system whereby legal responsibility for injury is apportioned on
the basis of comparative fault . . . . Therefore, the reason for the momentary
forgetfulness doctrine no longer exists and the question of whether a plaintiff’s
temporary forgetfulness constitutes contributory negligence is no longer germane.
Flynn, 478 N.Y.S.2d at 669.
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