Tavarez v. BJ'S Wholesale Club, Inc.
OPINION AND ORDER re: 57 MOTION for Summary Judgment filed by BJ'S Wholesale Club, Inc: For the reasons set forth above, Defendant's motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to terminate the motion (Doc. 57) and close the case. (Signed by Judge Edgardo Ramos on 5/3/2018) (jwh) Modified on 5/3/2018 (jwh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
16 Civ. 1780 (ER)
- against -
BJ’S WHOLESALE CLUB, INC.,
Mairony Tavarez (“Tavarez” or “Plaintiff”) brings this diversity action against BJ’s
Wholesale Club, Inc. (“BJ’s” or “Defendant”) seeking damages for personal injuries suffered as
a result of a slip-and-fall at a BJ’s location. 1 See Compl. (Doc. 1-4). BJ’s now moves for
summary judgment pursuant to Federal Rule of Civil Procedure 56(a) contending that there
exists no genuine issue of material fact as to whether they had constructive notice of the
dangerous condition that caused Plaintiff’s fall. See Memorandum of Law in Support of
Defendant’s Motion for Summary Judgment (“Def.’s Mem.”) (Doc. 59).
For the following reasons, BJ’s motion for summary judgment is GRANTED.
Plaintiff’s Complaint was originally filed in the Supreme Court of New York, Bronx County. The action was
removed to this Court on March 11, 2016. See Notice of Removal (Doc. 1).
FACTUAL BACKGROUND 2
A. The August 11, 2014 Slip-and-Fall
BJ’s is a chain of wholesale stores that specializes in the sale of discounted bulk-sized
products. Defendant’s Rule 56.1 Statement of Undisputed Material Facts (“Def.’s Stmt.”) (Doc.
56) ¶ 3. On August 11, 2014 3 at approximately 5:15 p.m., Plaintiff entered the BJ’s premises
located at 610 Exterior Street, Bronx, New York to shop with her brother, Reynaldo Hernandez
(“Hernandez”). Plaintiff’s Rule 56.1 Counter-Statement (“Pl.’s Stmt.”) (Doc. 65) ¶¶ 8, 10.
Plaintiff and Hernandez shopped in the grocery aisles of Defendant’s store and then got in line to
pay at register 7. Id. ¶ 10–11.
After approximately five minutes of waiting in line at register 7, Plaintiff remembered
that she needed to buy Sunny Delight juice boxes for her daughter. Def.’s Stmt. ¶ 5. She left
Hernandez in line and went to get the Sunny Delight. Id. On her way back to the register,
Plaintiff slipped and fell on an unknown substance and piece of produce 4 in the electronics aisle,
between twenty and thirty feet from the line for register 7. See id.; see also Pl.’s Stmt. ¶¶ 9, 17.
Plaintiff did not see the substance on the floor at any time before she fell, nor was she aware of
how long the condition existed prior to her fall. Def.’s Stmt. ¶ 6. Prior to the incident, neither
Plaintiff nor Hernandez saw a BJ’s employee in the area where the fall occurred. Pl.’s Stmt. ¶
14. They also did not walk by the area prior to Plaintiff’s fall. Def.’s Stmt. ¶ 4. Plaintiff did not
The following facts are drawn from Defendant’s Rule 56.1 Statement of Undisputed Material Facts (“Def.’s
Stmt.”) (Doc. 56), Plaintiff’s Rule 56.1 Counter-Statement (“Pl.’s Stmt.”) (Doc. 65), Defendant’s Reply 56.1
Statement (“Def.’s Reply”) (Doc. 70), and the parties’ supporting submissions. Any citation to the parties’ 56.1
Statements incorporates by reference the documents cited therein.
Plaintiff’s Rule 56.1 Counter-Statement incorrectly states the date of incident as August 11, 2018. See Pl.’s Stmt. ¶
8. Later in the document, she states the correct date of August 2014. Id. ¶¶ 23, 28.
The unknown piece of produce has been alternatively described as a leaf or bunch of grapes. Def.’s Stmt. ¶ 5.
inform the BJ’s employees of the presence of the condition before she fell, and she was not
aware of any other complaints of the condition. Id. ¶ 6.
Approximately five minutes elapsed from when Plaintiff left the register line until the
fall occurred, during which time Hernandez did not see any BJ’s employees in the aisle where
Plaintiff slipped. Pl.’s Stmt. ¶¶ 15, 16. Three minutes after Plaintiff’s fall, Hernandez informed
a BJ’s employee of the incident and Plaintiff’s injury. Id. ¶ 18. 5 Soon thereafter, Hernandez
examined the presence of “decaying fruit and vegetables” on the floor where Plaintiff slipped
and took photographs of the condition. Id. ¶ 19. As a result of the slip-and-fall, Plaintiff
sustained injuries to her right knee and was transported to the hospital via ambulance. See
Declaration of Ronald Ramo in Opposition to Defendant’s Motion to Summary Judgment
(“Ramo Decl.”) (Doc. 64), Ex. 6, LPMS Incident Report (“Incident Report”), at 1.
B. BJ’s Maintenance Policies
In August 2014, Joseph Hardy (“Hardy”) was the maintenance supervisor at the BJ’s
location; however, he was not on duty when the incident occurred. Pl.’s Stmt. ¶¶ 20, 25. At his
deposition, Hardy did not know if BJ’s had a minimum number of maintenance staff required to
be on duty at any specific time, but he estimated that there were approximately 5–10
maintenance staff members employed at that BJ’s location in August 2014. Id. ¶¶ 22, 23.
Moreover, at the time of his deposition, Hardy was unaware of the existence of any documents
that would identify which maintenance workers were on duty at the time of the fall. Id. ¶ 25.
Although the maintenance staff did not have specific written assignments, they were tasked to
walk through the premises every 10–15 minutes. Id. ¶ 27. Non-maintenance BJ’s employees
were not required to routinely inspect the premises but, if they noticed debris on the floor, they
According to Defendant’s Incident Report, the first BJ’s employee to arrive at the incident was a produce
employee named Luis. Id. ¶¶ 31–32.
were required to clean and report it. Id. ¶ 30. According to Zulema Marrero, the asset control
manager for the Bronx BJ’s location, the maintenance team did not keep records reflecting their
inspection schedule or procedures in August 2014. Id. ¶ 28.
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno
v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint
Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it might
affect the outcome of the litigation under the governing law. Id. The party moving for summary
judgment is first responsible for demonstrating the absence of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, “the
nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue
of fact for trial in order to avoid summary judgment.” Saenger v. Montefiore Med. Ctr., 706 F.
Supp. 2d 494, 504 (S.D.N.Y. 2010) (quoting Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145
(2d Cir. 2008)).
In deciding a motion for summary judgment, the Court must “‘construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.’” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However,
in opposing a motion for summary judgment, the non-moving party may not rely on unsupported
assertions, conjecture, or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d
14, 18 (2d Cir. 1995). To defeat a motion for summary judgment, “the non-moving party must
set forth significant, probative evidence on which a reasonable fact-finder could decide in its
favor.” Senno, 812 F. Supp. 2d at 467–68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256–
A. Burden of Proof
It is well-settled that New York state law governs Plaintiff’s substantive negligence
claim. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Except in matters governed
by the Federal Constitution or by acts of Congress, the [substantive] law to be applied in any
case is the law of the state.”). The procedural aspects of the claim, however, are governed by
federal law. See Tenay v. Culinary Teachers Ass’n of Hyde Park, 281 F. App’x 11, 13 (2d Cir.
2008) (affirming that the New York state summary judgment standard differs from the federal
standard, and the federal standard governed by Fed. R. Civ. P. 56 applies in federal court); see
also Allianz Ins. Co. v. Lerner, 416 F.3d 109, 118 (2d Cir. 2005) (stating that “New York state
procedural rules do not apply . . . to a federal court sitting in diversity”); see also Strass v. Costco
Wholesale Corp., No. 14 Civ. 06924 (PKC) (VMS), 2016 WL 3448578, at *3 (S.D.N.Y June 17,
2016) (applying federal procedural law to a New York State law negligence claim). At the
summary judgment stage, this includes the burden of proof. Tenay, 281 F. App’x at 13.
In federal court, a party moving for summary judgment can meet their burden by
“point[ing] to an absence of evidence to support an essential element of the nonmoving party’s
claim.” Brady v. Town of Colchester, 863 F.2d 205, 210–11 (2d Cir. 1988) (citing Celotex
Corp., 477 U.S. 317). With slip-and-fall cases, the “[d]efendant need not offer any evidence
showing that its cleaning and inspection practices would have revealed the existence of a
dangerous condition, but must only demonstrate that Plaintiff lacks affirmative proof sufficient to
establish a genuine issue of fact with respect to the element of notice.” Vasquez v. United States,
No. 14 Civ. 1510 (DF), 2016 WL 315879 (S.D.N.Y Jan. 15, 2016), at *8 (emphasis added); see
also Strass, 2016 WL 3448578, at *3 (“Defendant can meet its burden on summary judgment in
federal court by pointing to Plaintiffs’ inability to prove at trial that Defendant created or had
actual or constructive notice of the allegedly hazardous condition.”).
Accordingly, in order for BJ’s to prevail on their motion, they need only demonstrate that
Plaintiff lacks affirmative evidence to prove at trial that BJ’s had notice of the dangerous
B. Constructive Notice
Liability for negligence is governed by New York State law, which requires the “plaintiff
[to] demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3)
injury proximately resulting therefrom.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir.
2006) (quoting Solomon ex rel. Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985)). 6
To properly demonstrate breach of duty in premises liability and slip-and-fall cases, the plaintiff
must show that the defendant either created the dangerous condition that caused the fall or had
actual or constructive notice of the condition and failed to remedy it. Feis v. United States, 484
F. App’x 625, 628 (2d Cir. 2012) (quoting Bykofsky v. Waldbaum’s Supermarkets, Inc., 619
N.Y.S.2d 760, 761 (2d Dep’t 1994)). However, “[t]he mere existence of a foreign substance,
without more, is insufficient to support a claim of negligence.” Lacey v. Target Corp., No. 13
Civ. 4098 (RML), 2015 WL 2254968 (E.D.N.Y. May 13, 2015), at *4 (quoting Segretti v.
Shorenstein Co., East L.P., 682 N.Y.S.2d 176, 178 (1st Dep’t 1998)).
Here, the parties do not dispute whether there was a duty owed by Defendant to Plaintiff, nor whether Plaintiff
suffered an injury. Accordingly, the Court only examines the second factor of the negligence analysis—breach of
Here, Plaintiff does not contend that BJ’s created or had actual notice of the dangerous
condition that caused her injury. Rather, she alleges that the evidence on the record creates an
inference that BJ’s had constructive notice of the condition and should have rectified it.
Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Summary Judgment
(“Pl.’s Mem.”) (Doc. 66) at 2–3. Under New York law, “[c]onstructive notice can be shown by
testimony that a condition is ‘visible and apparent’ and has existed ‘for a sufficient length of time
prior to the accident to permit defendant’s employees to discover and remedy it.’” Heit v.
Supermarkets Gen. Corp., No. 93 Civ. 6871 (JFK), 1995 WL 559489, at *1 (S.D.N.Y. Sept. 20,
1995) (quoting Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 838 (1986)). In
order to establish constructive notice, the plaintiff must show that the defendant had “knowledge
of the particular dangerous condition” and more than 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) (internal quotations and citations omitted). Moreover, a constructive notice
analysis “turns on the facts of each case,” but “the inquiry is guided by the principle that
constructive notice of a particular condition is inextricably intertwined with the concept of
foreseeability.” Id. at 194 (citing Taylor v. United States, 121 F.3d 86, 90 (2d Cir. 1997)).
Visible and Apparent
Both parties agree that the condition was “visible and apparent.” Plaintiff, Hernandez,
and a BJ’s employee saw the condition subsequent to the fall. See Pl.’s Stmt. ¶¶ 18–19.
Moreover, Hernandez took photographs of the condition which depicted “decaying and
discolored vegetation in a wet spot on the floor.” Pl.’s Mem. at 3. This evidence is sufficient to
establish a “visible and apparent” condition. See Lionel v. Target Corp., 44 F. Supp. 3d 315, 321
(E.D.N.Y. 2014) (observance of the condition subsequent to a fall plus photographs of the
condition establish the “visible and apparent” requirement).
Accordingly, the Court now turns to the issue of whether there exists a genuine issue of
material fact regarding the length of time that the dangerous condition existed.
Sufficient Length of Time
Defendant contends that there exists no genuine issue of material fact as to whether this
particular dangerous condition existed for a sufficient length of time. Def.’s Mem. at 5–6. In
support of this contention, Defendant relies on Plaintiff’s deposition, during which she testified
that she did not see any liquid or produce on the floor prior to the fall. Id.; see also Affirmation
of Demi Sophocleous in Support of Defendant’s Motion for Summary Judgment (“Sophocleous
Aff.”) (Doc. 60), Ex. F, Deposition Transcript of Mairony L. Tavarez (“Pl. Dep.”), at 31:20–
32:7, 48:23–49:10. Moreover, she was unaware of how long the liquid and produce were on the
floor before the accident occurred or how they got there. Id.; see also Pl. Dep. at 48:23–49:10.
In order to establish constructive notice, there must be evidence on the record establishing
“either how the substance got there or how long it was there before the fall.” See Lionel, 44 F.
Supp. 3d at 321 (citations omitted).
Plaintiff argues that the photographs of “decaying vegetation” create a genuine issue of
material fact as to whether the dangerous condition was present for a significant length of time
and would have been remedied prior to the fall if BJ’s had exercised reasonable care. Pl.’s Mem.
at 3 (“It would appear, however, the condition lasted for longer [than 10 minutes] as the
photographs . . . show decaying and discolored vegetation in a wet spot on the floor.”). The
Court finds this contention to be speculative and unsupported by New York law. It is wellsettled that the visible characteristics of rotten, old, or dirty food are insufficient to prove
constructive notice. See Zeller v. Pathmark Stores, Inc., No. 00 Civ. 8216 (DLC), 2001 WL
1196196 (S.D.N.Y. Oct. 10, 2001), at * 2 (finding that the “dirty appearance of cold cuts” were
not “telltale signs supporting an inference of a long-standing condition”); 7 see also Koser v.
Supermarkets Gen. Corp., 663 N.Y.S.2d 888, 889 (NY. App. Div. 1997) (holding that the
presence of “smashed, ‘rotten’ fruit” did not “raise a triable issue with respect to notice to the
defendants” when the “plaintiff did not see the fruit . . . until after he fell”). Conversely, courts
in this district have consistently denied summary judgment where the plaintiffs observed the
presence of the dangerous condition prior to falling or presented sufficient evidence “supporting
an inference of a long-standing condition.” See Figueroa v. Pathmark Stores, Inc., No. 02 Civ.
4992 (THK), 2004 WL 74261 (S.D.N.Y. Jan. 15, 2004), at *3–4 (finding that a triable issue of
fact existed regarding constructive notice when the plaintiff, after falling, “observed a trail of
pink liquid leading from the front of the store through the checkout area with shopping cart
tracks and footprints through it”); see also Alexander v. Marriot Int’l, Inc., No. 01 Civ. 1124
(LMM), 2002 WL 1492125 (S.D.N.Y. July 11, 2002), at *4 (denying summary judgment when
plaintiff saw defendant’s “employees near a puddle of water, with no caution signs or barricades
around it, in the area where plaintiff fell twenty minutes before the accident”). However, such
facts are not present here. Accordingly, Plaintiff cannot rely solely on the photographs showing
the condition of the produce, without more, to demonstrate that the dangerous condition existed
for a sufficient length of time.
As a final matter, Plaintiff argues that BJ’s lack of specific evidence and documentation
regarding its cleaning and maintenance practices creates a triable issue of fact. Pl.’s Mem. at 3.
This argument, however, incorrectly shifts the burden of proof at the summary judgment stage to
Similar to the facts here, the plaintiff in Zeller did not observe the dangerous condition prior to falling. See id.
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