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granting summary judgment for defendant where although plaintiff "contends that she was on the cashier's line for thirty minutes, during which time she saw no customer purchasing grapes, the undisputed evidence shows that there were several open cashier stations and that several customers left the store while she was waiting in line. Any one of those customers could have dropped one or more grapes in the exit aisle. Accordingly, there is no way to determine, or even infer, when the offending grape came to be on the floor. In the absence of any circumstances suggesting that the grape had been on the floor for an extended period, the Court would consequently be required to engage in sheer speculation to find the constructive notice element met in this case"
Summary of this case from Santora v. Costco Wholesale Corp.Opinion
00 Civ. 7999 (FM)
March 18, 2002
MEMORANDUM OPINION AND ORDER
I. Introduction
In this negligence action, plaintiff Adriana Aggrey ("Aggrey") seeks to recover damages for injuries allegedly suffered when she slipped and fell at the Ossining, New York, location of defendant The Stop Shop Supermarket Company ("Stop Shop"). Stop Shop has now moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that there is no evidence that Stop Shop had actual or constructive notice of the debris that caused the accident. Following the filing of Stop Shop's motion, the parties consented to my exercise of jurisdiction over this case for all purposes pursuant to 28 U.S.C. § 636 (c). The motion is granted, pursuant to that authority, for the reasons detailed below.
II. Facts
The accident took place on the afternoon of Friday, October 2, 1998. (Affidavit of Paul Eschmann, Esq., sworn to on July 30, 2001 ("Eschmann Aff."), Ex. G ¶ 1). Ms. Aggrey, then 60 years old, was employed as a home health aide in the home of Eunice Manning. As was her custom on Fridays, Ms. Aggrey went to the Stop Shop store with Robert Manning, Mrs. Manning's adult son, to buy groceries for the week. (Aggrey Dep. at 24; Manning Dep. at 19-20).
The Stop Shop is a sizeable supermarket with approximately twelve cashier stations at the front of the store. (Manning Dep. at 30). As one enters the store, the produce department is to the right of the entry/exit vestibule. (Id.; see Lewis Dep. at 18). The cashier stations evidently are to the left of the entryway. (See Lewis Dep. at 29).
After completing their shopping, Mr. Manning and Ms. Aggrey proceeded to one of a handful of open cashier stations. (Aggrey Dep. at 27). According to Ms. Aggrey, she and Mr. Manning waited on line for approximately 30 minutes, (Aggrey Dep. at 31), even though Mr. Manning described the customer traffic in the store as "light to moderate" at the time. (Manning Dep. at 59). After the cashier totaled their purchases, Mr. Manning began pushing his shopping cart toward the exit. (Aggrey Dep. at 28). Ms. Aggrey, who was not carrying any groceries, followed behind. (Id.) After she went a "few steps beyond" the cashier station on her way out of the store, Ms. Aggrey's left foot slipped, followed by her right foot, and she fell to the ground. (Id. at 31-32; Manning Dep. at 33). The injuries that Ms. Aggrey sustained as a result of her fall were sufficiently serious that she required surgery and was unable to work for more than one year. (Aggrey Dep. at 11-14, 60).
After the accident, both Ms. Aggrey and Mr. Manning saw grape particles on the floor near where she fell. (Id. at 36; Manning Dep. at 44). Mr. Manning testified at his deposition that he saw one crushed grape the size of a "small marble" on the floor. (Manning Dep. at 44, 51). Ms. Aggrey referred to the substance that she slipped on as "grapes," but conceded that she could not say whether it was one grape or more. (Aggrey Dep. at 36-37). Aside from the grape particles, neither Ms. Aggrey nor Mr. Manning observed any debris on the floor. (Aggrey Dep. at 39-40, Manning Dep. at 44). Ms. Aggrey testified that she did not see anybody on line in front of her who purchased grapes. (Aggrey Dep. at 31). Mr. Manning estimated that three or four customers left the store while they were waiting in line. (Manning at 34-35).
It appears that none of the Stop Shop employees on duty that day witnessed the accident. (Lewis Dep. at 8-9). Moreover, Ramon Valentin, the Assistant Manager who signed the Stop Shop report concerning the accident, is no longer a Stop Shop employee. Although Ms. Aggrey's counsel was furnished with Valentin's Social Security number and last known address, the only Stop Shop employee who was deposed in this action was Robert Lewis, the manager of the Ossining Stop Shop store from October 1997 through approximately May 1999. (See Lewis Dep. at 6-7).
Ms. Aggrey's counsel requested the name of the "front end" manager during the Lewis deposition. (Id. at 13). Thereafter, however, counsel apparently never followed up on that request, in writing, as he had suggested he would. (See id.). Counsel also failed to take any steps to seek the Court's assistance in obtaining this information before the discovery cut off date.
In any event, even if the request had formally been made, Stop Shop's counsel advised Ms. Aggrey's counsel, by letter dated July 31, 2002, that his client did not have any information concerning the identity of the front end manager. (Affidavit of Gregory Peck, Esq., sworn to on August 29, 2001 ("Peck Aff."), Ex. 2). Moreover, Stop Shop's counsel furnished Ms. Aggrey's counsel with copies of Stop Shop's payroll records reflecting the personnel working at the Ossining store on the afternoon the accident occurred. Because those copies were difficult to read, Stop Shop's counsel also offered to make the originals available for review. (Id.). There is no indication that Ms. Aggrey's counsel availed himself of this opportunity.
During his deposition, Mr. Lewis identified the Stop Shop accident report concerning the incident, which apparently was completed by Messrs. Valentin and Manning. (Eschmann Aff. Ex. H ("Report"); Manning Dep. at 42, 52-53). The report states that the incident occurred "in front of checkout/counters" when Ms. Aggrey fell on "one grape from [the] produce de[partment]." (Report ¶ 23; Manning Dep. at 51-52). The report states further that the front of the store had been swept approximately forty minutes earlier and was clean and dry. (Report ¶¶ 18-19, 23).
Mr. Lewis testified that Stop Shop procedures required that the "front end" area of the store be kept "totally spotless." (Lewis Dep. at 22). Indeed, according to him, the store's porters were required to clean that area hourly. (Id. at 25). In addition, the cashiers were required to sweep and clean the conveyor belts between customers. (Id.).
An excerpt from Stop Shop's Standard Operating Procedures booklet ("SOP") indicates that Stop Shop employees must perform a detailed investigation and complete a two-sided accident report form whenever a customer accident occurs. (Peck Aff. Ex. 1 at 20) Among other tasks, the person who completes the report must make a personal detailed inspection of the area" with at "least two other employees as witnesses," must "take photographs of the areas where the accident occurred," and must attach the store's "sweeping log" to the report. (Id.). The employee who last swept or inspected the floor is also required to complete a Maintenance Report on the reverse side of the accident report. (Id.).
As part of its original Rule 26 disclosure, Stop Shop produced only one side of its two-sided accident report. (See Eschmann Aff. Ex. J). Stop Shop further indicated that it had no photographs of the accident scene. (Id. at 2). Stop Shop also represented that it would conduct a search for any relevant logbooks or maintenance reports. (Id.). The Stop Shop disclosure lists only three witnesses: Lewis, Valentin, and Manning. (Id.). As noted above, although Valentin was no longer a Stop Shop employee, the disclosure set forth his Social Security number and last known address. (Id.).
During a February 7, 2002 telephone conference with the Court, Stop Shop's attorney indicated that, to the best of his knowledge, Stop Shop employees at the Ossining store never completed the second page of the accident report concerning Ms. Aggrey. Counsel also represented that the sweeping logs had been destroyed, although he did not have any details regarding the date of, or reason for, their destruction. In her opposition papers, Ms. Aggrey complains about these gaps in Stop Shop's disclosure, but there is no indication that her counsel sought to pursue either issue prior to the August 1, 2001 discovery cut off in this case.
In her papers, Ms. Aggrey argues that Stop Shop's discovery responses also were deficient in other ways. For example, during the deposition of Lewis, Ms. Aggrey's attorney requested Stop Shop's SOP, but was only provided with the portion of the manual detailing how customer accidents are to be handled. (Peck Aff ¶¶ 12-13). Here again, however, the completeness of Stop Shop's production was never contested prior to the discovery cut off date.
Finally, although the originals were available for inspection, Ms. Aggrey complains that the copy of Stop Shop's records reflecting the employees who were working at the Ossining store on the date of the accident which was produced to her counsel was "partially illegible and wholly indecipherable." (Id. ¶ 14; see n 1, supra).
III. Discussion
A. Standard of Review
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. at 2253. If the court concludes that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial,'" and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 569 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). In making this determination, the court must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence." Masson v. New Yorker Magazine, 501 U.S. 496, 520, 111 S.Ct. 2419, 2435, 115 L.Ed.2d 447 (1991). If the moving party has met its burden, however, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 105 S.Ct. at 1356. The nonmovant must set forth specific facts, not mere speculation or conclusory allegations, to demonstrate the existence of a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995).
B. Merits
Under New York law, unless there is evidence that the defendant created the dangerous condition, a plaintiff seeking to recover damages in a slip and fall case such as this must show that the defendant had actual or constructive notice of the presence of the foreign substance in the store. Moss v. JNK Capital LTD., 211 A.D.2d 769, 621 N.Y.S.2d 679, 680 (2nd Dep't 1995); Cameron v. H.C. Bohack Co., 27 A.D.2d 362, 364, 280 N.Y.S.2d 483 (2nd Dep't 1967). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it." Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 647 (1986).
In Anderson v. Klein's Foods. Inc., 139 A.D.2d 904, 905, 527 N.Y.S.2d 897, 898 (4th Dep't 1988), the plaintiff slipped and fell on crushed grapes, but was unable to establish how long the grapes had been there. After she fell, "she saw grapes on the floor, some of which were crushed, and some others farther away which had been crushed by someone else." Id. Despite this evidence, the Fourth Department concluded that "any finding that the grapes had been on the floor for any appreciable length of time would be mere speculation." Id.
Similarly, in Moss, the plaintiff, who had fallen on a half-eaten plum, alleged that the defendant supermarket had constructive notice of the condition because two of its employees were working just a few feet away. 211 A.D. at 769, 621 N.Y.S.2d at 680. The Second Department concluded, however, that "any finding that the plum had been on the floor for any appreciable length of time would be mere speculation." Id.
A plaintiff who is unable to show through direct evidence that a foreign substance was on the floor of a supermarket for an appreciable length of time may be able to point to other circumstances suggesting that the defendant had or should have had notice of the dangerous condition. For example, in Negri v. Stop and Shop. Inc., 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 152 (1985), the plaintiff slipped and fell on some baby food which was near several broken baby food jars. Even though the plaintiff could not establish precisely when the product was spilled, the evidence showed that the baby food was dirty, that a witness in the vicinity of the accident did not hear any jars breaking during the fifteen or twenty minutes before the accident, and that the area had not been cleaned or inspected for at least fifty minutes. Id. The Court of Appeals held that these factors, taken together, were sufficient to make out a prima facie negligence case. Id.
Similarly, in Fisher v. Big V. Supermarkets, Inc., 221 A.D.2d 499, 633 N.Y.S.2d 823, 824 (2nd Dep't 1995), the court affirmed a judgment in favor of a plaintiff who slipped on "broken potato chips and pretzels and a wet paper towel" while shopping. At trial, there was also evidence from which the jury could infer that the store had last been swept eight hours before the accident. Id. Viewing the totality of the evidence in the light most favorable to the victim, the court held that it "[could not] be said as a matter of law that the plaintiffs did not meet their burden of showing that the store had constructive notice of the hazardous condition." Id. (citing Negri, 65 N.Y.2d at 626, 491 N.Y.S.2d at 152).
In this case, there is even less evidence than in Anderson to suggest that the grape or grapes that Ms. Aggrey slipped on had been on the floor for any appreciable period of time. Although Ms. Aggrey contends that she was on the cashier's line for thirty minutes, during which time she saw no customer purchasing grapes, the undisputed evidence shows that there were several open cashier stations and that several customers left the store while she was waiting in line. Any one of those customers could have dropped one or more grapes in the exit aisle. Accordingly, there is no way to determine, or even infer, when the offending grape(s) came to be on the floor. In the absence of any circumstances suggesting that the grape(s) had been on the floor for an extended period, the Court would consequently be required to engage in sheer speculation to find the constructive notice element met in this case.
Ms. Aggrey argues that the Court should nevertheless infer that Stop Shop had constructive notice of the grape(s) on the floor based principally on two gaps in its document production: the failure to produce either the sweeping logs or certain information which should have been part of, or annexed to, the accident report. "It is a well-established and long-standing principle of law that a party's intentional destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction." Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1999). A party seeking this adverse inference must make a three part showing. First, it must demonstrate that the party who destroyed the evidence was under an obligation to preserve it, a duty which arises "most commonly when suit has already been filed, . . . but also, on occasion, in other circumstances." Id. Second, it must show that the evidence was destroyed either intentionally or in a manner that was grossly negligent. See Reilly v. Natwest Mkts. Group. Inc., 181 F.3d 253, 267-68 (2d Cir. 1999). Finally, it must show that "the destroyed evidence would have been relevant to the contested issue." Kronisch, 150 F.3d at 127 (citing Stanojev v. Ebasco Servs. Inc., 643 F.2d 914, 923-24 (2d Cir. 1981)).
Turning first to the missing sweeping logs, there is no question that Stop Shop was aware of a risk of litigation from the moment that the accident occurred. Indeed, its own SOP concedes that the proper handling of a customer accident could mean the difference between winning or losing "a court case." (Peck Aff. Ex. 1 at 20). In the absence of any showing by Stop Shop regarding the circumstances in which the logs were destroyed, it is reasonable for the Court to assume that their destruction was intentional. It is further reasonable to assume that the logs would reflect a failure to sweep the store regularly (despite other indications that the floor was clean). Nevertheless, even if the Court were to assume that the missing logs would reflect a failure to sweep the front end area of the store for an extended period, a "general awareness that litter or some dangerous condition may be present" is insufficient to charge a defendant with constructive notice of the specific condition causing the plaintiff's fall. Gordon, 67 N.Y.2d at 838, 501 N.Y.S.2d at 647. Accordingly, the failure to sweep the area of the accident for a period of hours, even if established, would not be enough to permit a jury to infer that the defendant had constructive notice of the grape(s) that caused Ms. Aggrey's fall. Moreover, Ms. Aggrey has failed to adduce any other evidence which would suggest that Stop Shop knew or should have known of the grape(s) on the floor.
The other key pieces of missing evidence that Ms. Aggrey cites are related to the accident report. She complains that Stop Shop has failed to supply any photographs of the accident scene and the names of (i) the "front end" manager, (ii) any employees who witnessed Valentin's accident investigation, and (iii) the person who last cleaned the front end area of the store. (Peck Aff. ¶¶ 16-19). This is information which the SOP indicates should have been gathered in connection with the accident investigation. Ms. Aggrey suggests that she is "entitled to obtain copies of all of the[se] material[s] . . ., or, if they don't exist, . . . to a further deposition of the defendant in order to probe the discrepancy between what is required and what was actually done in this matter." (Id. at ¶ 19). Ms. Aggrey, however, has not shown how any of this discovery could reasonably be expected to raise a genuine issue of material fact regarding Stop Shop's constructive notice of the grape(s) that allegedly caused her accident. Ms. Aggrey therefore has not established a basis for denying Stop Shop's motion on the ground that further discovery is necessary. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) (affidavit must set forth "the nature of the uncompleted discovery, how the facts sought are reasonably expected to create a genuine issue of material fact, what efforts the affiant has made to obtain those facts, and why those efforts were unsuccessful."); T.B.I. Indus. Corp. v. Emery Worldwide, 900 F. Supp. 687, 692 (S.D.N.Y. 1995).
Finally, Ms. Aggrey complains that Stop Shop has failed to produce the portions of its SOP dealing with issues other than the handling of accidents. Her original request for discovery, dated December 1, 2000, sought information and documents pursuant to various provisions of the New York Civil Practice Law and Rules (notwithstanding the removal of this action from state court more than six weeks earlier). Among the items requested pursuant to the CPLR were "any rules, management guidelines, operating guidelines or other similar writing or document that purports to show operating procedures for the management, care and service of the premises in question." (Aggrey Notice For Discovery Demands ¶ 8). This request was supplemented at the Lewis deposition by a specific demand for production of the "SOP Booklet." (Lewis Dep. at 20). Although Ms. Aggrey now complains that she did not receive the SOP until the motion for summary judgment was filed, and then only the portion dealing with the handling of customer accidents, (Peck Aff. ¶¶ 12-13), there has been no showing that the missing pages of the SOP could create a triable issue as to whether Stop Shop had constructive notice of the grape(s) that caused Ms. Aggrey's fall. Indeed, the SOP obviously would be no more helpful than the sweeping logs. Even if the SOP established that front end personnel were required to clean their area regularly, this evidence would simply be cumulative of Mr. Lewis's deposition testimony that it was their duty to keep the area "totally spotless." More importantly, as noted above, the failure of store personnel to fulfill this obligation, even if established, would not be sufficient to permit the inference that Stop Shop had constructive notice of the specific condition that led to Ms. Aggrey's fall.
During the February 7th telephone conference, the Court requested that Ms. Aggrey submit copies of her discovery demands.
III. Conclusion
For the foregoing reasons, the motion of defendant Stop Shop for summary judgment is granted. The Clerk of the Court is directed to enter judgment against the plaintiff and close this case.
SO ORDERED.