United States District Court, S.D. New York
January 5, 2004.
LUZ MARIA GONZALEZ, Plaintiff, -against- WAL-MART STORES, INC. and SAM'S CLUB, Defendants/Third-Party Plaintiffs, against MID WESTCHESTER LAWN SERVICE, Third-Party Defendant
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION and ORDER
The plaintiff, Luz Maria Gonzalez, brought this action in the New York
State Supreme Court, New York County, against Wal-Mart Stores and Sam's
Club (collectively, "Sam's Club"), alleging that the defendants'
negligence caused Gonzalez to slip, fall, and injure herself in the
parking lot of a Sam's Club store in Elmsford, New York on May 29, 1999.
The defendants removed the action to this Court pursuant to
28 U.S.C. § 1441 and 1446, and jurisdiction is based on diversity
pursuant to 28 U.S.C. § 1332. Following removal to this Court, the
defendants, as third-party plaintiffs, filed a complaint pursuant to
Federal Rule of Civil Procedure 14 against third-party
defendant Mid Westchester Lawn Service ("Mid Westchester") seeking
contribution or indemnity.*fn1 Both Sam's Club and Mid Westchester have
moved, pursuant to Federal Rule of Civil Procedure 56, for summary
judgment on the claims made against each of them.
The standard for granting summary judgment is well established. 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 there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs.
Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task
at the summary judgment motion stage of the litigation is carefully
limited to discerning whether there are genuine issues of material fact
to be tried, not to deciding them. Its duty, in short, is confined at
this point to issue-finding; it does not extend to issue-resolution."
Gallo, 22 F.3d at 1224. The
moving party bears the initial burden of "informing the district court of
the basis for its motion" and identifying the matter that "it believes
demonstrate[s] the absence of a genuine issue of material fact."
Celotex, 477 U.S. at 323. The substantive law governing the case will
identify those facts which are material and "only disputes over facts
that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, 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) (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary
judgment is improper if there is any evidence in the record from any
source from which a reasonable inference could be drawn in favor of the
nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d
Cir. 1994). If the moving party meets its burden, the burden shifts to
the nonmoving party to come forward with "specific facts showing that
there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving
party must produce evidence in the record and "may not rely simply on
conclusory statements or on contentions that the affidavits supporting
the motion are not credible." Ying Jing Gan v. City of New York,
996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105,
114-15 (2d Cir. 1998) (collecting cases).
Unless otherwise noted, the following facts are not in dispute. The
plaintiff is a resident of Westchester County, New York. (Verified Compl.
¶ 1.) Wal-Mart Stores, Inc., doing business as Sam's Club, is a
Delaware corporation with its principal place of business in Arkansas.
(Def.'s Not. of Removal.) Mid Westchester is the "doing business" name
for a sole proprietorship of a New York resident. (Third-Party Compl.
¶ 5; Third-Party Answer ¶¶ 1-6; Transcript of Deposition of Edward
Kardian dated Sept. 12, 2002 ("Kardian Dep.") attached as Ex. K to Defs.'
Not. of Mot. ("Defs.' Mot."), at 4-5.)
The plaintiff alleges that on May 29, 1999 she visited a Sam's Club
store in Elmsford, New York. (Verified Compl. ¶¶ 25, 28.) She further
alleges that while she was walking in the Sam's Club parking lot, she was
caused to trip and fall when her feet became tangled in an approximately
two-feet long strip of white plastic rope that: was lying on the
pavement. (Id. ¶ 28; Transcript of Deposition of Luz Maria Gonzalez
dated July 16,
2001 ("Gonzalez Dep.") attached as Ex. G to Defs.' Mot., at 14-15;
Transcript of Deposition of Eugolia Ramiro Grullon dated Sept. 12, 2002
("Grullon Dep.") attached as Ex. I to Defs.' Mot., at 20-23.) The
accident allegedly occurred at approximately 11:30 in the morning on a
Saturday, and the plaintiff was accompanied by her husband and her
daughter. (Defs.' Rule 56.1 St. ¶ 2; Gonzalez Dep. at 8, 22.) The
plaintiff maintains that she did not see the rope before she tripped on
it, but her testimony on the issue was ambiguous. (Defs.' Rule 56.1 So.
¶ 2; Pl.'s Resp. Rule 56.1 St. ¶ 5; Gonzalez Dep. at 16-17.) She
does not know how long the rope had been on the pavement before she fell,
but she stated that similar ropes were "always . . . on the ground" in
the Sam's Club parking lot. (Defs.' Rule 56.1 St. ¶ 3; Gonzalez Dep.
at 16-19, 22.) When shown a picture of rope allegedly similar to that
involved in the accident, Eddie Gavida, an employee of Sam's Club,
stated: "It looks like T.V. or computer they come attached with
the plastic you have the monitor and the computer. They come
attached and you have this plastic ropes around it so a lot of time
people cut them because they don't fit in cars . . . To me this looks
like a thin rope. . . . This looks like it's a thin plastic that
T.V.'s have around them."
(Transcript of Deposition of Eddie Gavida dated Sept. 12, 2002 ("Gavida
Dep.") attached as Ex. J to Defs.' Mot., at 23-24.)
The plaintiff stated that she did not make any complaints to Sam's Club
about conditions in the parking lot prior to the accident, and that she
is unaware of anyone else who made any such complaints. (Defs.' Rule 56.1
St. ¶ 3; Gonzalez Dep. at 19.) Neither the plaintiff nor anyone on
her behalf reported her accident to Sam's Club after the accident
occurred. (Gonzalez Dep. at 48-49; Grullon Dep. at 25.)
Gavida testified that, in May 1999, Sam's Club employed a "front-end
manager," whose responsibilities included removing boxes and other debris
from the area in front of the store, including the parking lot. (Defs.'
Rule 56.1 St. ¶ 5; Pl.'s Resp. Rule 56.1 St. ¶ 4; Gavida Dep. at
9-10.) Gavida stated that Sam's Club also employed "parking lot
partners," who cleaned up debris in the parking lot whenever they saw it,
although there was no set schedule for such cleaning during the day.
(Defs.' Rule 56.1 St. ¶ 5; Pl.'s Resp. Rule 56.1 St. ¶ 4; Gavida
Dep. at 11-12, 16.) Gavida testified that the Sam's Club parking lot
contained about three garbage cans per aisle of parked cars. (Defs.' Rule
56.1 St. ¶ 6; Pl.'s Resp, Rule 56.1 St. ¶ 4; Gavida Dep. at 19.)
Sam's Club submitted further evidence documenting its regular policies
and cleaning of store premises, including the parking lot. (Affidavit of
Alvin Bowen dated June 4, 2003 attached as Ex. Q to Defs.' Mot.)
Sam's Club contracted with Mid Westchester to empty the garbage cans
and clean the debris in the parking lot on a daily basis, (Gavida Dep. at
16-17; Kardian Dep. at 6-7.) Mid Westchester would clean the parking lot
everyday beginning at around 6:00 a.m., and the job would take between an
hour and an hour and a half. (Gavida Dep. at 16-17; Kardian Dep. at 7.)
Edward Kardian, the owner of Mid Westchester, stated that: he and his
crew would go to the Sam's Club parking lot every morning and "take a
pickup truck which is left there, drive around and pick up any remaining
boxes, garbage. They would pick up papers, . . . cigarette butts,
basically cleaning down to everything making it spotless." (Kardian Dep.
at 7.) Kardian stated that the parking lot was generally dirtier on
Saturday and Sunday than on other days of the week. (Kardian Dep. at 13.)
Prior to May 1999, Mid Westchester had never received any complaints
concerning rope or other debris in the Sam's Club parking lot. (Kardian
Dep. at 10.)
Maria Ferreras, a friend of the plaintiff and a former employee of the
Sam's Club in Elmsford, New York, testified that when the plaintiff
described the rope that caused the accident
Ferreras recognized it as the type of plastic used to tie boxes and that
"it was always in the parking lot." (Transcript of Deposition of Maria
Ferreras dated Nov. 7, 2002 ("Ferreras Dep.") attached as Ex. L to Defs.'
Mot., at 20; Defs.' Rule 56.1 St. ¶ 11; Pl.'s Resp. Rule 56.1 St.
¶ 2.) Ferreras worked at the Elmsford, New York Sam's Club for
approximately two years, and she last worked there in 1995. (Id. at 6-7;
Defs.' Rule 56.1 St. ¶ 10; Pl.'s Resp. Rule 56.1 St. ¶ 2.)
Ferreras stated that when she worked at Sam's Club she would routinely
see in the parking lot rope similar to that allegedly involved in the
plaintiff's accident. (Ferreras Dep. at 24.) Ferreras stated that since
1995 when she stopped working at the Sam's Club, she would shop there
perhaps once a month, and maybe more times around the holidays. (Ferreras
Dep. at 11.) She could not remember whether she went to the Sam's Club at
any point in the first six months of 1999. (Defs.' Rule 56.1 St. ¶
10; Ferreras Dep. at. 13-14.)
Sam's Club now moves for summary judgment on the grounds that it had
neither actual nor constructive notice of the dangerous condition that
allegedly caused the plaintiff's injury. Mid Westchester also moves for
dismissing the claims asserted against it in the third-party complaint.
Under New York law, which the parties agree applies to this case, to
establish a prima facie case of negligence against a landowner where an
alleged dangerous condition on the land causes an injury, the plaintiff
must demonstrate that the landowner created the condition that caused the
injury, or that the landowner had actual or constructive notice of the
condition. Uhlich v. Canada Dry Bottling Co., 758 N.Y.S.2d 650, 651-52
(App. Div. 2003); Taylor v. United States, 121 F.3d 86, 89-90 (2d Cir.
1997). Finding that the defendant created the dangerous condition
requires "some affirmative act" on the part of the defendant. Fink v.
Bd. of Educ., 498 N.Y.S.2d 440, 441 (App. Div. 1986). In this case, the
plaintiff has submitted no evidence that Sam's Club created the allegedly
dangerous condition the white plastic rope in the parking lot
that caused her injury. Nor has the plaintiff submitted evidence
that Sam's Club had actual notice of the condition.
Rather, the plaintiff contends that Sam's Club had constructive notice
of the dangerous condition that allegedly caused her accident. "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
defendant's employees to discover and remedy it." Gordon v. Am. Museum of
Natural History, 492 N.E.2d 774, 775 (N.Y. 1986). The plaintiff has
submitted no evidence establishing how long the particular rope had been
in the parking lot before her accident. In fact, the plaintiff insists
that before the accident she herself did not see the rope that allegedly
caused her to fall. (PL's Resp. Rule 56.1 St. ¶ 5.) There is no
evidence that the rope was dirty or worn or in some other condition that
would permit an inference that the rope had been on the ground for an
extended length of time. Therefore, even assuming that the rope was
visible and apparent in the parking lot, it cannot be concluded that the
rope had been in the parking lot for a sufficient length of time prior to
the accident to permit Sam's Club employees to discover it and remove
it. See Gordon, 492 N.E.2d at 775 ("The record contains no evidence that
anyone, including plaintiff, observed the piece of white paper prior to
the accident. Nor did he describe the paper as being dirty or worn. . . .
Thus, on the evidence presented, the piece of paper that caused
plaintiff's fall could have been deposited there only minutes or seconds
before the accident and any other conclusion would be pure
Nevertheless, the plaintiff may also establish constructive notice by
submitting "evidence that an ongoing and recurring
dangerous condition existed in the area of the accident which was
routinely left unaddressed by the landlord." O'Connor-Miele v. Barhite
& Holzinger, 650 N.Y.S.2d 717, 719 (App. Div., 1996). When a
landowner has actual knowledge of a recurring dangerous condition, the
landowner "can be charged with constructive notice of each specific
reoccurrence of the condition." Garcia v. U-Haul Co. Inc.,
755 N.Y.S.2d 900, 900 (App. Div. 2003).
However, the New York Court of Appeals has instructed that a
defendant's "`general awareness" of a dangerous condition on the premises
is not legally sufficient to charge a defendant with constructive notice
of the particular condition that caused the plaintiff's injury. Gordon,
492 N.E.2d at 775 (finding that defendant's general awareness of litter
on premises was not sufficient to establish defendant's constructive
notice of wax paper on which plaintiff slipped); see also Piacquadio v.
Recine Realty Corp., 646 N.E.2d 795, 796 (N.Y. 1994).
Rather, a plaintiff must adduce evidence showing a defendant's
constructive notice of the particular dangerous condition that caused the
accident. See Taylor, 121 F.3d at 90-91; Fay v. Bass Hotels &
Resorts, Inc., No. 00 Civ. 9107, 2003 WL 21738967, at *6 n.3 (S.D.N.Y.
July 28, 2003). The plaintiff is not required to establish the
defendant's knowledge of the existence of the exact item on which the
plaintiff fell. See
Weisenthal v. Pickman, 545 N.Y.S.2d 369, 370-71 (App. Div. 1989).
However, the plaintiff must show that the defendant had such knowledge of
the particular dangerous condition that is "`qualitatively different from
a mere `general awareness' that a dangerous condition may be present."
Chin v. Harp Marketing, 648 N.Y.S.2d 697, 698 (App. Div. 1996) (summary
judgment held improper where supermarket's employee testified that he
knew salad dressing bottles, similar to that on which plaintiff fell,
sometimes dropped from displays and broke); see also McLaughlin v.
Waldbaums, Inc., 654 N.Y.S.2d 406, 407 (App. Div. 1997) (summary judgment
held improper where plaintiff was injured when soda bottles fell on her
after she took one from supermarket display and defendant's employee
testified that display in question was "wobbly" and bottles sometimes
dropped from it when customers removed bottles). Whether a plaintiff has
established a defendant's awareness of a dangerous condition at a level
of specificity sufficient to establish constructive notice turns on the
facts of each case, but the inquiry is guided by the principle that
"[c]onstructive notice of a particular condition is inextricably
intertwined with the concept of foreseeability." Taylor, 121 F.3d at 90.
The plaintiff argues that the rope on which she tripped was a specific
reoccurrence of a recurring dangerous condition in
the Sam's Club parking lot. The plaintiff maintains that her deposition
testimony as well as that of Ferreras and Kardian establishes that the
parking lot was repeatedly littered with boxes, cartons, and other
debris. She further notes that both she and Ferreras testified that they
had previously seen in the Sam's Club parking lot rope similar to that
which allegedly caused the plaintiff's injury. She also contends that the
parking lot had an insufficient number of garbage cans, and that Sam's
Club had an inadequate cleaning regimen in place for the parking lot. The
plaintiff thus argues that the rope that allegedly caused her to fall was
a specific reoccurrence of a recurring dangerous condition of which Sam's
Club had actual knowledge, and that Sam's Club therefore had constructive
notice of the particular condition that caused her accident.
However, the evidence submitted by the plaintiff is legally
insufficient to establish the defendants' constructive notice of the rope
that allegedly caused the plaintiff's injury. The plaintiff has
established at most that the defendants were generally aware that the
parking lot accumulated boxes and other debris that customers discarded.
The facts of this case closely resemble those in cases in which courts
have found that the plaintiff has demonstrated that the defendant had a
general awareness of a dangerous condition, but not knowledge of the
particular condition that caused the plaintiff's injury. Indeed, this case
is similar to Gordon, where the New York Court of Appeals held that a
general awareness of litter was insufficient notice of the particular
litter that was the cause of the plaintiff's accident. See Gordon, 492
N.E.2d at 775; see also Gloria v. MGM Emerald Enter., 751 N.Y.S.2d 213,
214 (App. Div. 2002) (affirming summary judgment dismissing complaint
because defendant's general awareness that its patrons carried drinks
from bar across dance floor where plaintiff fell was insufficient to
establish defendant's constructive notice of particular condition that
caused plaintiff's injury); Yearwood v. Cushman & Wakefield,
742 N.Y.S.2d 661, 662 (App. Div. 2002) ("Assuming that the defendant was
aware that water on the lobby floor was a recurring condition in rainy
weather, proof that the defendant was aware of this general condition
would not be sufficient to establish constructive notice of the
particular condition on the marble floor which caused the plaintiff to
slip."); Kraemer v. K-Mart Corp., 641 N.Y.S.2d 130, 131 (App. Div. 1996)
(affirming summary judgment dismissing complaint where plaintiff slipped
and fell on small piece of cardboard or plastic store ticket, because
"the defendant's general awareness of the fact that price and size
tickets did at times fall from its shoes is insufficient to establish
constructive notice of
the particular condition which caused the plaintiff's fall"); Bernard v.
Waldbaum, Inc., 648 N.Y.S.2d 700, 701 (App. Div. 1996) (affirming summary
judgment dismissing complaint because evidence of defendant's awareness
that supermarket produce might have fallen on floor was insufficient to
establish constructive notice of blueberries on which plaintiff slipped
The cases cited by the plaintiff do not require a conclusion to the
contrary. These cases show that summary judgment will be denied when the
plaintiff raises an issue of fact by presenting evidence that his or her
injury was caused by a specific reoccurrence of a recurring dangerous
condition, and where the condition is apparently dangerous. See Garcia,
755 N.Y.S.2d at 900 (affirming denial of summary judgment for defendant
where plaintiff tripped and fell on metal beam in defendant's storage
facility and where defendant's employee testified he had observed beams
on floor once or twice a month); Kivlan v. Dake Bros. Inc.,
680 N.Y.S.2d 293, 294 (App. Div. 1998) (affirming denial of summary
judgment for defendant where plaintiff slipped on oil spot in front of
defendant's convenience store and gas station and where evidence showed
recurring problem of oil spills resulting from defendant's customers
using self serve gas pumps as well as motor oil and other
automotive fluids sold in convenience store); O'Connor-Miele,
650 N.Y.S.2d at 719 (summary judgment held improper where plaintiff
slipped on soap powder in apartment building stairwell and where evidence
showed recurring problem of spilled soap powder in stairwell caused by
tenants moving between floors to find available washing machines).
In contrast to the cases cited by the plaintiff, in this case there is
no evidence that the defendants were, or should have been, on notice to
protect against injuries caused by specific reoccurrences of a dangerous
condition, namely, accumulations of plastic rope in the Sam's Club
parking lot. Assuming that the defendants had a general awareness that
boxes and other debris accumulated in the parking lot, they would not
have been put on notice that injuries caused by the particular condition
at issue here were foreseeable. There is no evidence that the defendants
had knowledge of recurring accumulations of plastic rope that created an
apparently dangerous condition that should have been corrected.
There is no evidence, for example, that Sam's Club had received
complaints concerning the particular condition that caused the
plaintiff's injury or, for that matter, concerning the general
accumulation of debris in the parking lot. See Carlos v. New Rochelle
Mun. Hous. Auth., 692 N.Y.S.2d 428, 428 (App. Div. 1999) (affirming
summary judgment for defendant where
defendant's executive director swore that no prior complaints had been
received with respect to accumulating garbage or debris where the
accident occurred); Uhlich, 758 N.Y.S.2d at 651-52 (affirming denial of
summary judgment to defendant tenant where plaintiff had previously
complained to tenant about garbage and broken asphalt that caused his
injury); Smith v. Funnel Equities, Inc., 723 N.Y.S.2d 194, 195 (App.
Div. 2001) (summary judgment should be granted to defendant because
"[t]he plaintiffs did not offer any evidence to establish that debris was
present on the loading dock for any appreciable period of time, or that
any prior complaints of debris on the loading dock were made to the
defendants"). The plaintiff herself never complained about the condition
of the Sam's Club parking lot, and she did not submit evidence that any
other person had ever complained about the condition of the parking lot.
Instead, the plaintiff relies on her own deposition testimony and that
of Ferreras, who cannot recall even visiting the Sam's Club store in
1999, that similar white rope was "always" in the Sam's Club parking lot.
None of this testimony indicates that any complaints were ever made to
the defendants or that the defendants should have been aware of a
specific, recurring dangerous condition. These conclusory statements are
insufficient to raise an issue of fact regarding the existence
of a recurring dangerous condition. See Grottano v. City of New York,
Dayton Beach Park Corp. No. 1 Corp., 757 N.Y.S.2d 795, 795 (App. Div.
2003) ("The wholly conclusory affidavit of a resident of a third-floor
apartment who claimed to have made `numerous verbal complaints' about
various unsanitary conditions on the stairs failed to establish the
existence of a specific recurring condition, and was legally insufficient
to constitute notice of the particular condition that caused the
plaintiff's fall."); Manzione v. Wal-Mart Stores, Inc., 744 N.Y.S.2d 466,
467 (App. Div. 2002) (finding that plaintiff's conclusory allegation that
hangers on storeroom floor were recurring hazard was insufficient to
raise issue of fact as to recurring dangerous condition); Carlos, 692
N.Y.S.2d at 428-29 ("The conclusory affidavits of the nonparty
witnesses, which fail to identify how long the condition existed, or the
identity of the persons to whom notice of the condition was allegedly
given, and when and how it was given, are without probative value.").
Based on the record as a whole, and drawing all inferences in favor of
the plaintiff, a reasonable jury could not conclude that the plaintiff
has submitted sufficient evidence showing that the defendants had actual
or constructive notice of the particular dangerous condition that
allegedly caused the plaintiff's injury. Because there is no genuine
material fact regarding the plaintiff's failure to make out a prima facie
case of negligence by Sam's Club, summary judgment must be granted
dismissing the complaint. As a result, summary judgment must also be
granted in favor of Mid Westchester, the third-party defendant, because
there is no grounds for contribution or indemnity where there is no
liability. Even if the plaintiff's complaint were not dismissed,
however, summary judgment would still be appropriate on the third-party
claims, because Sam's Club has made no effort to establish the asserted
negligence by Mid Westchester.
For the reasons explained above, the defendants' motion for summary
judgment is granted. The third-party defendant's motion for summary
judgment is also granted. The Clerk is directed to enter judgment
dismissing the complaint and the third-party complaint and closing this