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COOPER v. PATHMARK STORES

March 17, 1998

CHARLES COOPER, Plaintiff, against PATHMARK STORES, INC., Defendant.


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 Presently pending before the Court is defendant's motion for summary judgment in this diversity jurisdiction "slip and fall" personal injury negligence action. The defendant has established that there are no genuine issues of material fact in dispute and is entitled to judgment as a matter of law, and therefore, defendant's motion for summary judgment is granted.

 BACKGROUND

 Mr. Jorge Salazar, the evening manager, promptly went to the plaintiff's aid and upon determining that Mr. Cooper desired an ambulance, Salazar went to the courtesy desk and called the Fire Department. Mr. Salazar returned with the store's Polaroid camera and took five photos of the scene. The photos depict the plaintiff lying on the ground, his head in a blue puddle. Alongside the puddle is a toppled plastic Sta-Puff bottle, sans top.

 At a deposition, Mr. Salazar described the puddle as an oval shape about one and one half feet in diameter, extending out into the aisle from a point approximately five or six inches beyond the shelving. The top of the overturned bottle was located on the second shelf from the bottom. He further stated that neither the bottle nor the cap appeared to be cracked or broken in any fashion. There were also two displays in the aisle, the closest one situated approximately five feet from the puddle. Mr. Salazar also testified that there were no wagons or empty boxes in the aisle. Mr. Salazar did not know how the plastic bottle ended up on the floor, nor did the two on duty "truck crew" employees he asked. Mr. Salazar indicated that it is likely he had previously been in the aisle within five to thirty minutes of the accident. Further, he observed no footprints or skid marks in the immediate area of the accident.

 The plaintiff testified at a deposition that he was not aware of the puddle at the time he slipped, and, obviously, did not know how it came to be present on the floor or how long it was there. The plaintiff also was not aware of any leaking bottles or displays. The plaintiff claims to have initially lost consciousness and was later taken to the hospital via ambulance.

 DISCUSSION

 I. STANDARDS FOR GRANTING SUMMARY JUDGMENT

 Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden of proof is on the moving party to show that there is no genuine issue of material fact, Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)(citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)), and "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Id. (citing Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226 (1987)). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986) (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)).

 A party opposing a motion for summary judgment "'may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 248, 106 S. Ct. at 2510 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968). Under the law of the Second Circuit, "when no rational jury could find in favor of the nonmoving party because the evidence is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224 (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).

 It is within this framework that the Court addresses the present ...


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