Johnson-Harris v. United States
Filing
58
OPINION AND ORDER: re: 50 MOTION for Summary Judgment . filed by United States. For the foregoing reasons, Defendants motion for summary judgment is GRANTED. The Clerk of Court is directed to terminate the motion at ECF No. 50 and to terminate this action. (Signed by Judge Nelson Stephen Roman on 9/8/2021) (tg) Transmission to Orders and Judgments Clerk for processing.
Case 7:18-cv-04517-NSR-AEK Document 58 Filed 09/08/21 Page 1 of 7
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MAXINE L JOHNSON-HARRIS,
9/8/2021
Plaintiff,
No. 18 CV 4517 (NSR)
OPINION & ORDER
-againstUNITED STATES OF AMERICA,
Defendant.
NELSON S. ROMÁN, United States District Judge
Maxine L Johnson-Harris (“Plaintiff”) filed this action against the United States of
America under the Federal Tort Claims Act (“FTCA”) for injuries she allegedly incurred when she
tripped on a mat and fell during a visit to the Hartsdale Post Office in Westchester, New York, on
October 25, 2016. The United States has moved for summary judgment. (ECF No. 50.) For the
reasons that follow, the Court GRANTS the United States’ motion.
BACKGROUND
All facts are taken from the United States’ Statement of Undisputed Facts (“SUMF” (ECF
No. 52)), the Plaintiff’s reply thereto (“SUMF Resp.” (ECF No. 55)), and the parties’ affidavits
and exhibits, and are uncontested except where indicated.
I.
The Hartsdale Post Office
During the year 2016, the United States Postal Service (“USPS”) operated the Hartsdale
Post Office in Scarsdale, New York. (SUMF ¶ 1; SUMF Resp. ¶ 1.) In October 2016, Alicia Reed
was the Postmaster of the Hartsdale Post Office (the “Supervisor”). (SUMF ¶ 2; SUMF Resp. ¶ 2.)
Idris Kassim worked as a distribution clerk at the Hartsdale Post Office for 27 years, including
during October 2016 (“the Clerk”). (SUMF ¶ 3; SUMF Resp. ¶ 3.)
The Supervisor testified that Cintas came to the Hartsdale Post Office once a week. (Reed
Tr. 95:16-96:4). She further testified that she would remove any mats she saw were defective (Reed
1
Case 7:18-cv-04517-NSR-AEK Document 58 Filed 09/08/21 Page 2 of 7
Dep. 95:9-96:4); however, there was no policy or procedure for other employees to inform her of
a defective mat. (Reed Dep. 98:22-24). Instead, she believed they would tell her of a defect because
it is “common sense.” (Reed Dep. 99:9-21).
A custodian at the Hartsdale Post Office also had the authority to remove any mat
containing a defect. (SUMF ¶ 7; SUMF Resp. ¶ 7.)
II.
The Accident
On October 25, 2016, Plaintiff went to the Hartsdale Post Office. (Pl. Dep. 71 :2-13). When
she entered the Hartsdale Post Office, she went to the customer service counter to purchase some
money orders. (Pl. Dep. 71:9-13.) After purchasing the money orders, plaintiff thanked the clerk
and turned to the right, preparing to walk towards the writing counter to fill out the money orders.
(Pl. Dep. 75:5-9, 16-22.) When she turned to leave the counter, the outside of her right foot caught
onto the defect with the mat, causing her to fall. (Pl. Dep. 81: 11-82:23.) Plaintiff did not see any
ripple or puff on the mat prior to the fall (SUMF ¶ 9; SUMF Resp. ¶ 9); however, while on the
floor, plaintiff saw a “puff” or “ripple” in the mat that she avers caused her to fall (Pl. Dep. 76:2477:2, 80:25-81 :4; 88: 17-89:5).
After falling, Plaintiff stayed on the ground for approximately five minutes (Pl Dep.
108:22-25). A postal service employee saw Plaintiff on the floor and went to alert the Supervisor.
(Kassim Dep. 24:6-13). A postal clerk came around the counter to assist Plaintiff while she lay on
the floor and Plaintiff testified that the Clerk noticed the defect with the mat and pointed it out to
Plaintiff. (Pl. Dep. 85: 19-9). Plaintiff told the Supervisor that she tripped over the mat, and the
Supervisor immediately removed the defective mat from the lobby and put it in her office. (Reed
Dep. 70: 17-22; 72:20-24; 77:2-7; 78:9-13).
The USPS did not take photographs of the mat. (Reed Dep. 92:22-24). The defective mat
was not preserved and was returned to the company which provided the mats. (Reed Dep. 83: 152
Case 7:18-cv-04517-NSR-AEK Document 58 Filed 09/08/21 Page 3 of 7
17). The post office had surveillance cameras that captured video of the “lobby area” of the post
office. (Reed Dep. 24: 12-1 7). The Supervisor “assumed” that she could have had the video
downloaded if she asked the IT department to do it but she never did “because that’s not part of
my job description.” (Reed Dep. 38:11-17; 103:5-24).
III.
Plaintiff’s Injuries
As a result of the mat catching her foot, plaintiff fell on her right side (Pl. Dep. 82:22-83:3)
and landed upon the mat. (Pl. Dep. 80:17-24).
IV.
Procedural History
Plaintiff filed this action on May 22, 2018. (ECF No. 1.) The United States answered on
August 13, 2018. (ECF No. 8.) During a conference on March 6, 2020, Magistrate Judge Smith
directed the parties to file a pre-motion conference letter for their anticipated summary judgment
motion(s). The United States filed a pre-motion conference letter on April 16, 2020. (ECF No. 47.)
The Court waived the pre-motion conference requirement and granted the United States leave to
file its summary judgment motion. (ECF No. 48.) That motion (ECF No. 50; see ECF Nos. 5153), which Plaintiff opposed (ECF Nos. 54-56), is now before the Court.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment shall be granted if “there
is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4 (1986). “[G]enuineness runs to whether
disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs
to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the
applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.
1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material
3
Case 7:18-cv-04517-NSR-AEK Document 58 Filed 09/08/21 Page 4 of 7
fact exists, a plaintiff “may not rest upon the mere allegations or denials of the pleading[s],” but
must by affidavit or otherwise “set forth specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). “Conclusory statements, conjecture or speculation by the party
resisting the motion will not defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63,
71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of
the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine
issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the
initial burden is met, the non-moving party “must produce specific facts indicating that a genuine
issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is
not significantly probative, summary judgment may be granted.” Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).
Nonetheless, “when the burden of proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant’s claim.” Jaramillo v. Weyerhauser Co., 536 F.3d 140, 145
(2d Cir. 2008)).
DISCUSSION
I.
Premises Liability Claims
“Because plaintiff alleges that the government’s negligent act or omission occurred in New
York, the source of substantive liability for her FTCA claim is New York law.” Ryan v. United
States, 15-cv-2248 (GHW), 2015 WL 7871041, at *4 (S.D.N.Y. Dec. 3, 2015); see 28 U.S.C.
§ 1346(b)(1). To establish a prima facie case of negligence under New York law, “the plaintiff
must establish the existence of a duty on the defendant’s part to the plaintiff, the breach of the
4
Case 7:18-cv-04517-NSR-AEK Document 58 Filed 09/08/21 Page 5 of 7
duty, and that the breach of the duty was a proximate cause of an injury to the plaintiff.” Quinlan
v. Exel Direct Inc., No. 11-cv-8739 (KNF), 2014 WL 2991025, at *6 (S.D.N.Y. July 3, 2014)
(quoting Gordon v. Muchnick, 579 N.Y.S.2d 745, 746 (2d Dep’t 1992)).
“To succeed on a premises liability claim alleging any injury caused by a defective
condition, the plaintiff must demonstrate that the defendant either created the defective condition,
or had actual or constructive notice thereof for such a period of time that, in the exercise of
reasonable care, it should have corrected it.” Tenay v. Culinary Teachers Ass’n of Hyde Park, 281
F. App’x 11, 13 (2d Cir. 2008) (summary order) (quotation marks and alteration omitted); accord,
Riley v. Battery Place Car Park, 210 F. App’x 76, 77 (2d Cir. 2006).
In slip-and-fall cases, there are two theories by which a plaintiff can establish constructive
notice. Under the first, “a defect must be visible and apparent and it must exist for a sufficient
length of time prior to the accident to permit defendant’s employees to discover and remedy it.”
Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986) (holding that stray litter
on heavily trafficked stairs to museum that plaintiff did not see prior to fall did not amount to
constructive notice); accord Taylor v. United States, 121 F.3d 86, 89-90 (2d Cir. 1997). Under the
second, a plaintiff may submit “evidence that an ongoing and recurring dangerous condition
existed in the area of the accident which was routinely left unaddressed by the landlord.” Gonzalez
v. Wal-Mart Stores, Inc., 299 F. Supp. 2d 188, 193 (S.D.N.Y. 2004); accord Weisenthal v.
Pickman, 545 N.Y.S.2d 369, 371 (2d Dep’t 1989).
II.
Application
Plaintiff does not assert that the USPS had actual notice. Instead, Plaintiff avers that a
dispute of material fact exists as to whether the USPS had constructive notice of the dangerous or
defective condition—the allegedly defective mat—that caused her fall and consequent injury.
5
Case 7:18-cv-04517-NSR-AEK Document 58 Filed 09/08/21 Page 6 of 7
Plaintiff’s argument as to the first theory of constructive notice is that the allegedly defective mat 1
was in the middle of the post office lobby, directly in front of a USPS employee, and visible to a
security camera. 2 However, as Defendants correctly observe, Plaintiff has adduced no evidence
that the defect as opposed to the mat was visible. “Courts in the Second Circuit have routinely
granted summary judgment in similar slip and fall claims on the ground that the defect was not
visible and apparent when a plaintiff did not see it prior to the fall.” Watts v. Wal-Mart Stores E.,
LP, No. 16-cv-4411 (KMK), 2018 WL 1626169, at *5 (S.D.N.Y. Mar. 29, 2018) (collecting cases).
Plaintiff has failed to “provide some basis for an inference that the [defect] was there long enough
to blame [Defendant] for the accident.” Casierra v. Target Corp., No. 09-cv-1301, 2010 WL
2793778 (JG) (MDG), at *3 (E.D.N.Y. July 12, 2010); see also Watts, 2018 WL 1626169, at *5
(finding no constructive notice because “there is simply no evidence . . . as to how long” the
defective condition existed) (quoting Casierra, 2010 WL 2793778, at *3 (collecting additional
cases)); Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 838 (1986) (granting summary
1
Insofar as Plaintiff seeks an adverse inference instruction based on Defendant’s failure to
document or preserve the defective mat; however, she fails to adduce evidence, let alone, allege,
that at the time the mat was returned to the supplier as it the custom, Defendant knew or should
have known that it would be evidence relevant to litigation. See, e.g., Rivera v. Nat’l Passenger
R.R. Serv., 442 F. Supp. 2d 164, 170 (S.D.N.Y. 2006) (“When it was thrown away, plaintiff had
not yet commenced any legal action, nor had she put Amtrak on notice that she was likely to do
so, nor had she made any request to examine the capping.”) Plaintiff’s actions cannot be construed
to have put Defendant on notice that litigation was possible where she stood up on her own and
went about filling out her money orders, told the supervisor she was fine, and provided the
supervisor with a statement that she was fine and that there was no reason that she could not leave
the Post Office on her own.
2
Insofar as Plaintiff seeks an adverse inference instruction based on Defendant’s failure to
preserve surveillance video, she has failed to present evidence upon which the Court could make
a “finding that the party acted with the intent to deprive another party of the information’s use in
the litigation.” Fed. R. Civ. P. 37(e)(2). An employee’s testimony that she could have had the video
downloaded if she asked the IT department to do it but she never did “because that’s not part of
my job description” (Reed Dep. 38:11-17; 103:5-24), does not come close to the standard.
6
Case 7:18-cv-04517-NSR-AEK Document 58 Filed 09/08/21 Page 7 of 7
judgment where “[t]he record contains no evidence that anyone, including plaintiff, observed the
[defect] prior to the accident” and plaintiff failed to “provide[] some indication that it had been
present for some period of time”).
As to the second theory of constructive notice, Plaintiff has brought forward no evidence
that any defect in the mat or mats was ongoing or recurring, or that it was unaddressed. The only
evidence before the Court is that (1) the USPS employees had never experienced a customer
tripping over a mat before, and (2) USPS employees regularly monitored mats for defects and had
them replaced at regular intervals. (Kassim Tr. 36:9-14 (employee had never in 27 years seen
someone else trip over mats); Reed Tr. 68:11-12 (employee had “never dealt with a situation like
this”); Reed Tr. 95:16-20 (employee regularly inspected and removed any defective mats)); see
also Reed Tr. 25:18-27:2 (mats were changed weekly).) Because it would be Plaintiff’s burden at
trial to demonstrate constructive notice, Defendant can and has prevailed on summary judgment
by pointing to a lack of evidence going to this essential element of Plaintiff’s claim.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED.
The Clerk of Court is directed to terminate the motion at ECF No. 50 and to terminate this
action.
Dated:
September 8, 2021
White Plains, New York
SO ORDERED:
________________________________
NELSON S. ROMÁN
United States District Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?