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concluding that "the boxes described by [the plaintiff] are unlikely to have been placed between the refrigerators in the frozen foods section absent an affirmative act by [the defendant store]"
Summary of this case from Henry v. Target Corp.Opinion
No. 03 Civ. 0040 (RWS).
October 20, 2004
MICHAEL S. GROSSMAN, ESQ. New York, NY, Attorney for Plaintiff.
KRAL, CLERKIN, REDMOND, RYAN, PERRY GIRVAN Attorneys for Defendant, New York, NY, ROBERT J. DESTEFANO, ESQ. Of Counsel
OPINION
Defendant Pathmark Stores, Inc. ("Pathmark") has moved under Rule 56, Fed.R.Civ.P., to dismiss the slip-and-fall complaint of plaintiff Guadalupe Ortiz ("Ortiz"). For the reasons set forth below, the motion is denied in part and granted in part.
Prior Proceedings
This personal injury action was removed from the Supreme Court of the State of New York, County of New York, on January 3, 2003. Ortiz alleges in her complaint that on July 31, 2001, she fell as a result of water on the floor of a Pathmark store and that on September 18, 2001, she fell as a result of grapes on the floor of the same store. The verified complaint contains two separate counts corresponding to the two separate falls alleged.
Discovery was had, and the motion of Pathmark for summary judgment to dismiss the complaint was heard and marked fully submitted on June 16, 2004.
The Facts
The facts are derived from Pathmark's Statement of Facts made pursuant to Local Civil Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, as well as from depositions, discovery, and an affidavit submitted by Ortiz. The facts set forth below do not constitute findings of fact by this Court.
Ortiz entered the Pathmark store at 1851 Bruckner Boulevard, Bronx, New York, at 12:30 a.m. on July 31, 2001 and fell on her way to aisle twelve as a result of water on the floor. She did not see the water before she fell and does not know how long the water was on the floor. She observed boxes with water dripping from them between refrigerators in the frozen food section and testified that the water dripping from the boxes was the water in which she fell. She could not identify the boxes. Her boyfriend, Paul Rivera ("Rivera"), observed the same condition when he arrived at the store, having been called after Ortiz fell.
Ortiz entered the store again on September 18, 2001, at approximately 2:00 p.m. She went to the fruit section in the first aisle and noticed grapes scattered on the floor of the first aisle and at the aisle at the back of the store perpendicular to the first aisle. After fifteen minutes, Ortiz proceeded to the sixth aisle. She slipped on grapes at the back of the store between the fifth and sixth aisles and fell. She did not see the grapes on the floor of the back aisle prior to the time she slipped.
Rivera testified that, when he arrived at the store, Ortiz told him that she had slipped on grapes between the fifth and sixth aisles. He saw grapes leading from the produce aisle to the area of the fall.
The Standard For Summary Judgment
Summary judgment is granted only if there is no genuine issue of material fact and 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, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004); see generally 11 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.11 (3d ed. 1997 Supp. 2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Ouarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) ("[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment.").
In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law."Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). In order to defeat a motion for summary judgment, the non-moving party must offer sufficient evidence to enable a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248; Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
Discussion
To establish a prima facie case of negligence in a slip-and-fall action under New York law, a plaintiff must prove that the defendant either created the hazardous condition leading to the slip and fall or had actual or constructive notice of the condition. See Taylor v. United States, 121 F.3d 86, 89-90 (2d Cir. 1997) (applying New York law); Anderson v. Pathmark Stores, Inc., No. 96 Civ. 3672 (JFK), 1999 WL 349707, at *2 (S.D.N.Y. May 27, 1999) (same); accord Bykofsky v. Waldbaum's Supermarkets, Inc., 210 A.D.2d 280, 281, 619 N.Y.S.2d 760, 761 (N.Y.App.Div. 2d Dep't 1994); Trujillo v. Riverbay Corp., 153 A.D.2d 793, 794, 545 N.Y.S.2d 2, 3 (N.Y.App.Div. 1st Dep't 1989).
"`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 defendant's employees to discover and remedy it.'" Taylor, 121 F.3d at 90 (quoting Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 838, 501 N.Y.S.2d 646, 647, 492 N.E.2d 774, 775 (N.Y. 1986)). "A general awareness that a dangerous condition might exist is legally insufficient to constitute notice of the particular condition which caused the injury." Baumgartner v. Prudential Ins. Co., 251 A.D.2d 358, 359, 674 N.Y.S.2d 84, 85 (N.Y.App.Div. 1st Dep't 1998) (citingPiacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 494, 646 N.E.2d 795, 796 (N.Y. 1994); Maguire v. Southland Corp., 245 A.D.2d 347, 348, 665 N.Y.S.2d 680, 681 (N.Y.App.Div. 2d Dep't 1997)); accord Gordon, 67 N.Y.2d at 838, 501 N.Y.S.2d at 647, 492 N.E.2d at 775 (A "general awareness" that a dangerous condition may be present is not "legally sufficient to charge defendant with constructive notice. . . .").
Where there are facts suggesting that a defendant created the condition leading to the plaintiff's slip and fall, whether the defendant had actual or constructive notice of a condition is not relevant. See, e.g., Roberts v. Arrow Boat Club, 46 A.D.2d 815, 816, 361 N.Y.S.2d 213, 214 (N.Y.App.Div. 2d Dep't 1974).
I. Factual Issues Preclude Summary Judgment on the First Fall
The existence of genuine issues of material fact precludes a grant of summary judgment as to Ortiz's fall on July 31, 2001. Specifically, there is evidence of leaking boxes between refrigerators in the frozen food section, a location that creates a fair inference that the boxes contained frozen food. Ortiz has testified that the water in which she fell was water dripping from the boxes. A jury could infer from these facts that Pathmark caused the boxes to be placed and left between refrigerators in the frozen food section and thus created the condition that led to Ortiz's fall.
The authorities cited by Pathmark do not compel a contrary result. In Bogdanovic v. Norrell Health Care Services, Inc., 300 A.D.2d 611, 752 N.Y.S.2d 399 (N.Y.App.Div. 2d Dep't 2002), the plaintiff slipped on a puddle of water leaking from a water cooler bottle. The court found, as a matter of law, that the defendants had "met their burden of establishing prima facie that they did not create or have actual or constructive notice of the puddle or of the alleged leak" and that the plaintiffs' contentions in response were based on conjecture. Bogdanovic, 300 A.D.2d at 611, 752 N.Y.S.2d at 400. Ortiz has noted, however, that in Bogdanovic there was no evidence that the water had leaked from the water cooler or the nearby water bottles, as the bottles were sealed and unopened. Here, Ortiz has testified that there was water dripping from the boxes and that it was this water in which she fell.
The decision in Fink v. Board of Education of the City of New York, 117 A.D.2d 704, 498 N.Y.S.2d 440 (N.Y.App.Div. 2d Dep't 1986), is also distinguishable. In Fink, the plaintiffs argued that the defendant had created the condition responsible for their injuries "[s]ince the only persons in the supply room when the box appeared in the aisle were the defendant's employees." Fink, 117 A.D.2d at 705, 498 N.Y.S.2d at 441. The court affirmed the dismissal of the plaintiffs' complaint, noting that the creation of a dangerous condition by a defendant may only be imputed in those limited "situations where the defendant has created the condition by some affirmative act." Fink, 117 A.D.2d at 705, 498 N.Y.S.2d at 441 (citing Cook v. Rezende, 32 N.Y.2d 596, 347 N.Y.S.2d 57, 300 N.E.2d 428 (N.Y. 1973)). Unlike the situation inFink, where the small, six-inch box in the aisle of the supply room could have fallen to the floor in the absence of any affirmative act, the boxes described by Ortiz are unlikely to have been placed between the refrigerators in the frozen foods section absent an affirmative act by Pathmark. Cf. Anderson, 1999 WL 349707, at *3 (concluding, contrary to the defendant's suggestion, that it was "unlikely" that someone unassociated with the defendant would have attempted to clean up the subject spill and that, consequently, a factual issue existed as to whether the defendant had actual notice of the spill).
Pathmark's reliance on Cooper v. Pathmark Stores, Inc., 998 F. Supp. 218 (E.D.N.Y. 1998), is likewise misplaced. Unlike the circumstances here, the factual setting surrounding the incident at issue in Cooper was "inconsistent with an employee created condition." See Cooper, 998 F. Supp. at 220-21 (concluding that "the evidence did not support an inference that the defendant created the puddle" in which the plaintiff slipped, since "[a] bottle lying overturned on the floor with the cap removed and placed on the shelf is not indicative of an employee accident resulting from the improper stocking of shelves, but is suggestive of foul play by a non-employee").
II. There Is Insufficient Evidence Of Constructive Notice With Respect To The Second Fall
Both parties recognize that there is no evidence of actual notice of the conditions alleged to have caused Ortiz's second fall and that the issue is one of constructive notice under the principles enunciated in Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 (N.Y. 1986).
Although Ortiz saw fallen grapes on the first aisle on September 18, 2001, and saw the grapes at the back of the store fifteen minutes before the accident, there is no testimony that there were grapes at the back of the store between aisles five and six prior to Ortiz's fall. Rivera's testimony that, after Ortiz's fall, he saw grapes leading from the produce aisle to the area between the fifth and sixth aisles is insufficient to establish that there were grapes in the latter area prior to the fall. Evidence of constructive notice of the condition that is alleged to have caused the accident therefore has not been adduced. See, e.g., Anderson v. Cent. Valley Realty Co., 300 A.D.2d 422, 422-23, 751 N.Y.S.2d 586, 587 (N.Y.App.Div. 2d Dep't 2002) (concluding that the plaintiff's testimony as to the existence of a puddle of water in one location four hours before her fall was not relevant to establishing how long prior to her fall the differently located puddle in which she had slipped had existed, and there was therefore "no evidence to permit an inference that the defendant had constructive notice of the condition") (internal quotation marks and citations omitted), leave to appeal denied, 99 N.Y.2d 509, 760 N.Y.S.2d 101, 790 N.E.2d 275 (N.Y. 2003).
Conclusion
Summary judgment dismissing the complaint with respect to the first fall is denied, but it is granted with respect to the second fall.
It is so ordered.