The opinion of the court was delivered by: JOHN KOELTL, District Judge
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