United States District Court, E.D. New York
November 8, 2005.
MARIE A. OLSEN, Plaintiff,
K MART CORPORATION, Defendant.
The opinion of the court was delivered by: JOAN AZRACK, Chief Magistrate Judge
MEMORANDUM AND ORDER
This action, brought by plaintiffs Marie A. Olsen and Warren
Olsen in New York State Supreme Court, was removed to this Court
based on diversity jurisdiction, pursuant to 28 U.S.C. § 1441(a)
(Dkt No. 1: 08/24/04 Notice of Removal). By stipulation dated
February 28, 2005, the action by plaintiff Warren Olsen was
discontinued against defendant (Dkt No. 6: 02/28/05 Stipulation
of Discontinuance). By stipulation dated May 18, 2005, the
parties consented to have this case presided over by me for all
purposes, including entry of judgment (Dkt No. 9: 05/18/05
Consent to Jurisdiction by U.S. Mag. J.). Accordingly, I have
considered defendant K Mart Corporation's motion for summary
judgment, in which defendant argues that plaintiff Marie Olsen
has not made out a case of prima facie negligence. Defendant
argues that plaintiff failed to sufficiently prove that defendant either created the condition
which caused her injury or had actual or constructive notice of
the condition and, additionally, that summary judgment should be
granted because the condition was open and obvious, not
inherently dangerous, and readily observable. For the reasons
stated below, defendant's motion is denied.
For the purposes of this motion, the facts are drawn from the
parties' Local Rule 56.1 Statements ("56.1 St."), Marie Olsen's
March 3, 2005 deposition ("Olsen Dep.") (Dkt No. 17: 08/30/05
Notice of Mot. for Summ. J., Ex. G), John Ravaioli's March 3,
2005 deposition ("Ravaioli Dep.") (Id., Ex. H), Anthony
Davidson's April 26, 2005 deposition ("Davidson Dep.") (Id.,
Ex. I), and photographs of the K Mart aisle where the incident
occurred (Id., Ex. E; Dkt No. 16: 08/25/05 Pl.'s Affirm. in
On October 20, 2003 plaintiff, accompanied by her husband,
visited the K Mart located at 2875 Richmond Avenue (Def.'s 56.1
St., ¶ 1). After approximately a half-hour of shopping for sundry
items, plaintiff entered the canned goods aisle (Id., ¶ 3).
Upon entering at the end of the canned goods aisle, plaintiff
observed floor displays along the eighty-foot long aisle and two
women at the opposite end (Olsen Dep. 25:10, 26:4-5,16-20,
27:9-10). Plaintiff proceeded down the middle of the aisle,
pushing a shopping cart and looking at the shelves of goods
(Olsen Dep. 27:24-25, 28:6-7). Approximately forty-feet into the
aisle, plaintiff stopped her cart and moved approximately two
feet over to the shelves, where she reached up to retrieve three
cans (Olsen Dep. 31:18, 32:16-19, 33:10-13,24-25). Cradling the
three cans between her left forearm and her body, plaintiff
attempted to return to her shopping cart (Olsen Dep. 34:17-22,
35:5-7). Trying to move her feet, plaintiff "hit [a] box and went
right over it." (Olsen Dep. 35:22-23). Still holding the cans,
plaintiff hit the ground on her left shoulder and arm (Olsen Dep. 70:8-11,18-20).
The box over which plaintiff tripped and fell was a wrapped,
cardboard case full of Spaghetti-O's cans (Olsen Dep. 37:7-10,
38:20-22). It was the only such case on the floor (Olsen Dep.
After plaintiff's fall, a K Mart manager, John Ravaioli, came
to assist her (Olsen Dep. 77:18-21; Ravaioli Dep. 11:22-24,
18:10-14). Ravaioli moved the flat of cans off the floor
(Ravaioli Dep. 52:5-6). Plaintiff observed him pick up the case
of Spaghetti-O's and place it on a lower shelf on top of boxes of
noodles (Olsen Dep. 43:19-25, 44:2-12, 79:15-17; Affirm. in Opp'n
to K Mart's Mot. for Summ. J., Ex. 4; Notice of Mot. for Summ.
J., Ex. E, photo. E & Q). When plaintiff returned to the K Mart
location three days later to photograph the aisle where she had
fallen, she observed the flat in the same location, on top of the
boxes of noodles. (Olsen Dep. 43:19-25, 44:2-12, 63:11-19, 69:
3-6; Notice of Mot. for Summ. J., Ex. E, photo. Q). Plaintiff
photographed the aisle in which she fell, the shelf on which the
case of Spaghetti-O's had been placed, and the fully stocked
Spaghetti-O's shelf. (Olsen Dep. 40:18-25, 42:22-25, 49:6-25,
50:20-25; Notice of Mot. for Summ. J., Ex. E, photo. A-Q).
Plaintiff's left shoulder was broken as a result of her fall
(Olsen Dep. 87:4-5). Plaintiff has had rheumatoid arthritis
throughout her entire body and diabetes for many years (Olsen
Dep. 9:15-25; 13:18-20).
I. Applicable Legal Standards
A. Summary Judgment
Summary judgment must be granted when "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 judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) ("Rule 56(c) mandates the entry of summary judgment
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case. . . ."). However, "the burden is upon the moving party to
demonstrate that no genuine issue respecting any material fact
exists." Gallo v. Prudential Residential Serv., L.P.,
22 F.3d 1219, 1223 (2d Cir. 1994). The court must view the evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in the non-movant's favor. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); U.S. v.
Diebold, Inc., 369 U.S. 654, 655 (1962); see also Parkinson
v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001); Carlton v.
Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2000).
Once the moving-party establishes that there is no issue of
material fact precluding judgment as a matter of law, the
non-moving party must then shoulder the responsibility of keeping
its case alive. Anderson, 477 U.S. at 250. "[W]hen a properly
supported motion for summary judgment is made, the adverse party
must set forth specific facts showing that there is a genuine
issue for trial." Id. (citing Fed.R.Civ.P. 56(e)) (internal
quotations omitted). However, the non-moving party must take
caution "not [to] rest upon mere allegations or denials of [its]
pleading, but must set forth specific facts showing that there is
a genuine issue for trial." Anderson, 477 U.S. at 248 (citing
Fed.R.Civ.P. 56(e)). The non-moving party "must do more than
show there is some metaphysical doubt as to the material facts."
Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Mere conclusory allegations, speculation or
conjecture will not avail a party resisting summary judgment.
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998); see
also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998)
("The non-moving party may not rely on mere conclusory
allegations nor speculation, but instead must offer some hard
evidence showing that its version of the events is not wholly
Summary judgment is appropriate if the court determines that
"the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party," a pragmatic approach to
determining whether there is "no genuine issue for trial."
Matsushita, 475 U.S. at 587 (internal quotes omitted) (citing
First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253,
298 (1968)). "An issue of fact is `material' for these purposes
if it `might affect the outcome of the suit under the governing
law,'" while "[a]n issue of fact is `genuine' if `the evidence is
such that a reasonable jury could return a verdict for the
non-moving party.'" Konikoff v. Prudential Ins. Co. of Am.,
234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 248).
For a judicial determination of what facts in a particular case
qualify as material and which are merely periphery, the Court in
Anderson set out a framework for employing the substantive law:
As to materiality, the substantive law will identify
which facts are material. Only disputes over facts
that might affect the outcome of the suit under the
governing law will properly preclude the entry of
summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted. See
generally 10A C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure § 2725, pp. 93-95
(1983). . . . That is, while the materiality
determination rests on the substantive law, it is the
substantive law's identification of which facts are
critical and which facts are irrelevant that
governs. . . . [M]ateriality is only a criterion for
categorizing factual disputes in their relation to
the legal elements of the claim. . . .
Anderson, 477 U.S. at 248. I will now turn to the substantive
law to use as a guidepost in identifying what facts, if any,
would be material to the outcome of this lawsuit. B. Prima Facie Negligence Claim
Jurisdiction in this case is based on diversity of citizenship;
thus because the alleged negligent acts and the accident occurred
in New York, New York substantive law governs. Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938). Defendant claims that summary
judgment is appropriate because plaintiff has failed to establish
a prima facie case of negligence. Generally, New York law
requires that a plaintiff in a negligence action establish that:
(1) the defendant owed it a cognizable duty of care; (2) the
defendant breached such duty; and (3) the plaintiff suffered
damages as a proximate result of this breach. Solomon v. City of
New York, 66 N.Y.2d 1026, 1027, 489 N.E.2d 1294,
499 N.Y.S.2d 392 (1985).
Without question, K Mart Corporation had a duty to maintain the
premises in a reasonably safe condition. See, e.g., Basso v.
Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872,
386 N.Y.S.2d 564, 568 (1976) (New York State Court of Appeals adopts "single
standard of reasonable care . . . whereby foreseeability shall be
a measure of liability"). Additionally, "a shopkeeper has a duty
to keep aisles free from obstacles which may injure persons
endeavoring to shop." Lee S. Kreindler et al., New York Practice
Series New York Law of Torts, § 12:44 (July 2005), available
at 2002 WL 1802840 (citing Henderson v. Waldbaums,
149 A.D.2d 461, 462, 539 N.Y.S.2d 795, 796 (2d Dept. 1989) ("It is also the
duty of a storekeeper to prevent any obstruction to its customers
in the aisles of its store.")).
While K Mart clearly had a duty to keep its premises clear of
hazards for its customers, in order for plaintiff to establish a
prima facie case of negligence in a "slip and fall" action,
she must demonstrate that defendant "created the condition which
caused the accident, or that the defendant had actual or
constructive notice of the condition." Bykofsky v. Waldbaum's
Supermkt., Inc., 210 A.D.2d 280, 281, 619 N.Y.S.2d 760, 761 (2d Dept. 1994); see
also Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836,
838, 492 N.E.2d 774, 775, 501 N.Y.S.2d 646, 647 (1986). "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." Bykofsky, 210 A.D.2d at 281, 619 N.Y.S.2d at 761
(internal quotations omitted). Where defendant has created the
condition, actual or constructive notice may be imputed. Lewis
v. Metro. Transp. Auth., 99 A.D.2d 246, 249, 472 N.Y.S.2d 368,
371 (1st Dept. 1984). However, if there are facts indicating that
defendant created the condition, it is irrelevant for
establishing liability whether the defendant had actual or
constructive notice of the condition. See, e.g., Roberts v.
Arrow Boat Club, Inc., 46 A.D.2d 815, 816, 361 N.Y.S.2d 213 (2d
In the present case, plaintiff does not allege that defendant
had actual or constructive notice, rather plaintiff bases her
theory of prima facie negligence on the assertion that
defendant created the hazard. As the moving party, the initial
burden is on K Mart to "establish in the first instance that it
did not create the condition." Westbrook v. WR
Activities-Cabreras Mkts., 5 A.D.3d 69, 75, 773 N.Y.S.2d 38, 44
(1st Dept. 2004). However, "[i]n order to impose liability on
defendant, there must be some proof tending to show that
[defendant] . . . created the dangerous condition causing
injuries to a customer." Eddy v. Tops Friendly Markets,
91 A.D.2d 1203, 459 N.Y.S.2d 196, 197 (4th Dept. 1983) (emphasis
added); see also Eagan v. Great Atl. & Pac. Tea Co.,
252 A.D. 791, 300 N.Y.S. 707 (2d Dept. 1937).
New York courts have been careful to draw a line between
affirmative acts that create a hazard and non-affirmative acts.
For a plaintiff to prove prima facie negligence, even if she
can credibly infer creation by defendant, she must show the
creation was an affirmative, "deliberate and intentional" act by defendant. Cook v. Rezende, 32 N.Y.2d 596,
599, 300 N.E.2d 428, 429, 347 N.Y.S.2d 57, 59 (1973). See
also Fink v. Bd. of Educ. of the City of New York,
117 A.D.2d 704, 705, 498 N.Y.S.2d 441 (2d Dept. 1986) (dismissal of
complaint affirmed because plaintiffs failed to present probative
evidence that defendant created the hazard by affirmatively
knocking a small box of supplies to the floor rather than it
falling on its own); Ortiz v. Pathmark Stores, No. 03-Civ-0040,
2004 WL 2361674, at *3 (S.D.N.Y. Oct. 20, 2004) (summary judgment
denied because boxes of frozen food, the melting of the contents
inside causing the puddle of water on which plaintiff slipped,
were unlikely to have been placed in their location absent an
affirmative act by defendants).
Coupled with the distinctions drawn between affirmative and
non-affirmative acts is the second inquiry, which New York courts
conduct in slip-and-fall cases, as to whether the affirmative act
was likely committed by an employee/agent of the defendant or
whether the act is more likely attributable to a customer or some
other source. If the moving party is able to show that there is
no evidence that it created the hazard, but rather, that in all
probability it was created by some other source, then summary
judgment may be granted in its favor. See Quarles v. Columbia
Sussex Corp., 997 F. Supp. 327, 330 (E.D.N.Y. 1998) (the mere
fact that defendant set up a coffee cart for its guests in the
lobby does not amount to creation of the puddle, since any hotel
guest could have spilled coffee). See also Adams v.
Alexander's Dep't Stores of Brooklyn, Inc., 226 A.D.2d 130, 131,
639 N.Y.S.2d 826, 828 (1st Dept. 1996) (complaint dismissed
because "the record demonstrates only that plaintiff fell on ice
cream [on defendant's property], not how or when that substance
came to be on the floor"); Melton v. E.P.S. Hair Design, Inc.,
202 A.D.2d 649, 610 N.Y.S.2d 53 (2d Dept. 1994) (defendant was
responsible for the chair but there was no evidence that
defendant created the dangerous condition by turning the chair so
that the footrest faced the aisle). Finally, in New York circumstantial evidence is sufficient to
make out a prima facie case of negligence if it supports an
inference of causation or negligence, even it if does not rule
out "the existence of remote possibilities that the injury was
not caused by the defendant, or [that] the defendant was not
negligent." Dillon v. Rockaway Beach Hosp. & Dispensary,
284 N.Y. 176, 179, 30 N.E.2d 373, 374 (1940). "It has long been
recognized that, in circumstantial cases, the possibility that an
accident may have been caused by factors other than defendant's
negligence does not mandate a conclusion that plaintiff has
failed to make out a prima facie case." Brito v. Manhattan
and Bronx Surface Transit Operating Auth., 188 A.D.2d 253, 254,
590 N.Y.S.2d 450, 451 (1st Dept. 1992). However, speculation
absent any evidence, direct or circumstantial, will not defeat a
motion for summary judgment. See Moorman v. Huntington Hosp.,
262 A.D.2d 290, 691 N.Y.S.2d 548 (2d Dept. 1999) (summary
judgment affirmed because "plaintiff's assertions that only
employees had access to the utility room and therefore only an
employee of the defendant could have created the hazardous
condition [was] speculative and unsupported by any evidence in
the record") (emphasis added); Gatanas v. Picnic Garden B.B.Q.
Bufffet House, 305 A.D.2d 457, 761 N.Y.S.2d 77 (2d Dept. 2003)
(summary judgment granted because plaintiff's assertion that
water on the floor was spilled by a waitress refilling customer's
glasses was "mere speculation"). While there may be a fine line
between circumstantial evidence pointing towards a probable
source of creation and bald speculation,
[w]here the facts proven show that there are several
possible causes of an injury, for one or more of
which the defendant was not responsible, and it is
just as reasonable and probable that the injury was
the result of one cause as the other, plaintiff
cannot have a recovery, since he has failed to prove
that the negligence of the defendant caused the
Bernstein v. City of New York, 69 N.Y.2d 1020,1021,
511 N.E.2d 52, 53, 517 N.Y.S.2d 908, 909 (internal quotations omitted), (quoting Ingersoll v. Liberty
Bank, 278 N.Y. 1, 7, 14 N.E.2d 828, 829 (1938)).
II. Application of Law to Facts
A. Threshold Matter
As an initial matter, plaintiff's Memorandum of Law in
Opposition to Defendant K Mart Corporation's Motion for Summary
Judgment ("Pl.'s Mem.") predicates defendant's liability on the
assertion that the evidence "indicates that [the case of cans]
was most likely left on the floor by defendant's stock associate
at least one hour before the accident, and that it was a tripping
hazard" (Pl.'s Mem. at 1). Consequently, whether or not defendant
K Mart had actual or constructive notice of the condition that
caused plaintiff Olsen's fall is "not relevant" (Id. at 4). In
sum, plaintiff's theory of the case is that the Olsen, Ravaioli,
and Davidson deposition testimony establishes through
circumstantial evidence that the flat of cans, over which
plaintiff fell, was left on the pantry-aisle floor by John Gouda,
a K Mart employee, while he was stocking the shelves the morning
of plaintiff's injury.*fn1 Accordingly, this Court will only
consider whether there is a genuine issue of material fact as to
whether K Mart created the condition that caused plaintiff
Olsen's fall. Additionally, the Court will consider whether the
hazard was open and obvious and what effect, if any, it would
have on summary judgement.
B. Creation of the Condition Defendant argues that since wrapped flats of pantry items are
periodically left on shelves for convenient restocking or
customer-bulk purchase, plaintiff cannot prove that the case was
left on the floor by a stocking clerk and not by a customer, and,
thus, plaintiff has failed to set forth a prima facie case of
negligence. Simply, defendant maintains that permitting the
instant action to proceed to trial would require a jury to engage
in speculation as to whether the wrapped box of cans was left out
by an employee or moved from a shelf to the floor by a customer.
In support of its arguments, defendant relies principally on the
Ravaioli deposition testimony that flats of goods were
periodically left on the shelves for easier restocking (Ravaioli
Plaintiff disputes defendant's explanation of the box being
placed on the floor by a customer, pointing to (i) the assistant
pantry-aisle manager Davidson's statement that John Gouda stocked
the pantry-aisle shelves on the morning of the accident, (ii)
Ravaioli's statements that the other cases of goods on the
shelves were not in their plastic wrap, and (iii) Ravaioli and
Davidson's testimony that goods not unpacked and placed on the
shelves were subsequently brought back to storage. Also,
plaintiff points to the sixteen pound weight of the flat of cans
to dispute that a customer would move it onto the floor.
K Mart relies on a host of case law to support its contention
that plaintiff's assertions are mere speculation and that,
consequently, the evidence is insufficient to defeat a motion for
summary judgment. However, this Court will discuss, in turn,
defendant's authorities and why they fail to adequately satisfy
defendant's high burden in this case, thereby leaving open a
question of material fact for the jury as to whether defendant
created the hazard from which plaintiff's injuries derived.
In Quarles v. Columbia Sussex Corp., the Radisson Hotel
placed coffee in the hotel lobby for its guests.
997 F. Supp. at 329. Plaintiff, a guest in the hotel, slipped in a puddle of
coffee on the lobby's marble floor. Id. The court held that there was no
evidence that defendant created the spill, because "the mere fact
that a coffee cart was set up for guests does not amount to
creation [of the condition]." Id. at 330. Plaintiff testified
that in the hotel lobby she observed people "[h]olding coffee
cups during the time in question and recalls seeing a coffee cart
in the vicinity." Id. at 329. That very fact is the key
distinction between Quarles and the present case. The coffee
spill was equally, if not more so, "reasonabl[y] and probabl[y]"
created by one of the many hotel lobby occupants who had partaken
of coffee that morning, than from the coffee urn set up by
defendants. See Bernstein, 69 N.Y.2d at 1021,
511 N.E.2d at 53, 517 N.Y.S.2d at 909.
In the instant case, defendant's claim that a customer was the
likely cause of the box on the floor, without definitively
proving that its employee did not leave the case after stocking
the pantry-aisle, is no more probable than plaintiff's assertion
that the box was indeed left by the pantry-aisle stocking
associate. Defendant makes much of the fact that the box was "a
pretty long way" from the actual spot on the shelves where
Spaghetti-O's were displayed (Davidson Dep. 22:12-13); however,
based on the rest of the deposition testimony, the "remote
possibilities that the injury was not caused by the defendant"
pale in light of the circumstantial evidence from which a jury
could infer that it was. See Dillon, 284 N.Y. at 179,
30 N.E.2d at 374. In fact, the very location of the box, a slight
distance from the shelved Spaghetti-O's, could lead a reasonable
jury to infer that the box was overlooked by the stock-associate
when he completed his stocking of the pantry-aisle, rather than
that a customer hefted the sixteen pound box down the aisle.
See Konikoff, 234 F.3d at 97.
John Ravaioli, the loss prevention manager at K Mart at the
time of plaintiff's accident, stated that he patrolled the aisles for hazards on "a.m. and p.m.
tours" to address safety concerns in the aisles and hazards
throughout the store (Ravaioli Dep. 4:21, 32:8-9,13-15). While
Ravaioli stated that he patrolled the aisles "constantly" during
stocking, he stated it was "hard to determine" approximately how
many times he would have patrolled the pantry aisle the day of
plaintiff's accident (Ravaioli Dep. 31:19-21, 24). Ravaioli
described the stocking practices at the store as "routine"
(Ravaioli Dep. 32:21). The pantry associates, the employees in
charge of stocking, would bring the merchandise out on "floor
highs" or "roll and racks" (Ravaioli Dep. 32:22-25, 33:21-22).
Ravaioli stated that when there was no room for merchandise on
the shelf it was brought "back to the back [of the store]"
(Ravaioli Dep. 33: 9-11). Typically, goods such as cans were
brought out in flats and crates on the floor highs and unloaded
onto the shelves (Ravaioli Dep. 37:2-3). The empty cartons were
brought to the back and thrown away afterwards (Ravaioli Dep.
Ravaioli testified that when he inquired of his staff how the
case of Spaghetti-O's got onto the floor, "it was unknown. Nobody
knew how it got there" (Ravaioli Dep. 38:16-17). Yet, he stated
that he did not inquire as to who last stocked the Spaghetti-O's
before the accident (Ravioli Dep. 38:18-20).*fn2 Ravaioli
cannot state with any certainty where the flat of Spaghetti-O's
cans came from and, according to his deposition testimony, did
not follow up with any of the pantry employees to inquire
(Ravioli Dep. 41:13-20).
Anthony Davidson, the assistant manager of the pantry
department when plaintiff's accident occurred, recalled that on October 20, 2003, there was one pantry
associate, Mohammed Gouda, assigned to the aisle where plaintiff
tripped, and that, generally, the pantry shelves were stocked in
the morning if there was merchandise to go out onto the shelves
(Davidson Dep. 6:3-4,14-16, 7:21-23, 11:5-11). Any stocking done
during the morning hours would usually be completed by noon
(Davidson Dep. 11:11-13).
Unequivocally, Davidson recalls viewing the pantry-aisle the
morning of plaintiff's accident and remembers that Gouda brought
cases out to stock the shelves (Davidson Dep. 28:23-25, 29:2-5).
He could not recall exactly what items were brought out from the
stockroom that morning, and could not specifically state whether
Spaghetti-O's were unpacked (Davidson Dep. 29:5-6,11-13).
Davidson stated at his deposition that the case of Spaghetti-O's
might have been left on a shelf for customer purchase in its
wrapped state (Davidson Dep. 23:11-14,17,19-25). Contrarily,
Ravaioli testified that the cases, when used as "floor stacks" or
displays to promote sale items, were normally unwrapped, not in
plastic, as was the case of Spaghetti-O's in question (Ravioli
Dep. 44:7-11,16-18) (emphasis added).
Under Quarles, if the moving party can show there is no
evidence that it created the hazard it may be entitled to summary
judgment. 997 F. Supp. at 330 (emphasis added). Defendant has
failed to do so, as the circumstantial evidence in no way rules
out defendant's possible creation of the hazard. Likewise,
plaintiff has offered circumstantial evidence to "show that
[her] version of the events is not wholly fanciful." D'Amico,
132 F.3d at 149. Indeed, plaintiff has provided evidence that the
pantry-aisle was stocked the morning of her accident.
Additionally, plaintiff has provided "some proof tending to show"
that K Mart did create "the dangerous condition causing injuries" to plaintiff Olsen. Eddy, 91 A.D.2d at 1203,
459 N.Y.S.2d at 197.
In Fink v. Bd. of Educ. of the City of New York, the court
held that without evidence of an affirmative act on the part of
defendants, plaintiff could not prove creation of the hazard.
117 A.D.2d at 705, 498 N.Y.S.2d 441. Plaintiff Fink was in the supply
room with approximately ten other teachers. Id. When she
entered the room, there was nothing on the floor; however, as she
exited, she tripped over a small box that had fallen to the
floor. Id. Plaintiff argued that because the only other people
in the room were fellow teachers, one of them must have knocked
the box to the floor, creating a tripping hazard. Id. The court
did not agree, however, holding that plaintiff failed to provide
any evidence that the box was "affirmatively" knocked over. Id.
More light is shed on the facts of Fink in Ortiz v. Pathmark
Stores, 2004 WL 2361674, at *3. The Ortiz court noted, "[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." 2004
WL 2361674, at *3.
Ortiz is factually more akin to the present case. In Ortiz,
plaintiff fell as a result of water on the Pathmark store floor.
Id. at *1. Plaintiff observed boxes in the frozen-food section
of the store dripping water and testified that the water dripping
from the boxes was the water on which she fell. Id. In a second
fall at the same location, plaintiff slipped on grapes. Id.
With regard to the first slip, the court denied defendant's
motion for summary judgment, holding that "[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." Id. at *3.
Plaintiff apparently did not argue that defendant had created the
hazard with respect to the second slip, but rather that defendant
was on constructive notice of the condition, on which ground
defendant was granted summary judgment.
Fink is inapposite to the present case, since a sixteen pound
box of cans, unlike a small box of office supplies, could not be
jarred by a breeze or some other disturbance and fall unaided to
the floor. The placement of the sixteen pound case on the floor
was an "affirmative act" committed by someone, the determination
of who most appropriately rests with a jury. Like the boxes of
frozen foods in Ortiz, the fact that defendant admits that the
pantry-aisle was stocked the day of plaintiff's accident creates
an inference that the sixteen pound box was left there by a
stock-associate, as opposed to moved by a customer. While
Ravaioli did clarify that, on occasion, flats of canned goods
would be left in their case on the shelves for easy restocking
(Ravaioli Dep. 51:10-12), that does not explain why a customer
would pick up a sixteen pound case of Spaghetti-O's and set it on
the floor when there was an entire shelf stocked with the very
same product (Notice of Mot. for Summ. J., Ex. E, photo. L & O).
Ravaioli also claims that when he came to plaintiff's aid, he did
not put the case of Spaghetti-O's on top of other items, as
plaintiff's photographs three days after the accident depict.
Rather, he alleged that he must have put it on an empty shelf
space because when asked if he possibly could have placed the
flat on top of other goods, he claims he "wouldn't do that"
(Ravaioli Dep. 52:14).
Presumably, defendant wants the fact-finder to believe that
there was actual space on the shelves for the case and that
Ravaioli was not required to place it on top of other goods in
order to clear the floor, because that might lead to the
inference that there was no space on the shelf for the case and
that the case had been left inadvertently on the floor by someone
stocking the shelves. Significantly, plaintiff's photographs
depict shelves fully stocked with Spaghetti-O's cans, which also
might lead a jury to infer that the shelves had been recently, if
not within the past few days, stocked (See Notice of Mot. for Summ. J., Ex. E, photo. L, N, O
& P). Remarkably, defendant would ask this Court to believe that
not only once in a single week did a customer lift a sixteen
pound case of Spaghetti-O's, first onto the floor, but that it
happened twice, from an empty shelf to atop pantry products, in
the space of three days.
Defendant cites Cooper v. Pathmark, 998 F. Supp. 218
(E.D.N.Y. 1998) in further support of its contention that the box
was moved by a customer and therefore summary judgment should be
granted. However, the facts in Cooper are easily distinguished
from the facts in this case, and thus once again affirm the need
for a jury determination on this question of material fact. In
Cooper, plaintiff slipped in the household and laundry supplies
aisle on a puddle of soapy liquid. Id. at 219. On a nearby
shelf, a bottle of soap was lying on its side, the cap a few
shelves below. Id. The bottle was not damaged or cracked in any
way. Id. Plaintiff alleged that, because there were carts of
empty boxes indicating that the shelves had been recently
stocked, the soap must have been tampered with by employees.
Id. at 220. The court found this to be speculative, and held
[t]he factual setting surrounding the incident is
inconsistent with an employee created condition. 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.
Id. at 221. Plaintiff Olsen argues that "the placement of the
case of plastic wrapped Spagetti-O's is consistent with an
accident caused by an employee improperly stocking the shelves"
(Pl.'s Mem. at 3). This Court agrees with plaintiff that Cooper
is distinguishable. A bottle of soap lying on its side, the cap
some shelves down, leaking liquid all over the floor could have
many imaginable sources other than employees and to pinpoint who
caused the hazard would call for wild speculation. Yet, for a
jury to infer that a sixteen pound box of cans, still in its
plastic wrapping, unlike all the other boxes on the shelves for customer purchase and restocking,
had been overlooked by a stock clerk the morning of the incident
is not so wild a speculation.
This is especially true in light of the fact that defendant
carries the burden in summary judgment to prove that it did not
create the hazard. See Westbrook, 5 A.D.3d at 75,
773 N.Y.S.2d at 44. Davidson admittedly did not assess the aisle
again the morning or afternoon after Gouda stocked the shelves
(Davidson Dep. 29:7-10). Ravaioli found it "hard to determine"
approximately how many times he had patrolled the pantry aisle
the day of plaintiff's accident (Ravaioli Dep. 31:19-21, 24).
Thus, defendant cannot rule out the box having been left behind
after the shelves were stocked that morning.*fn3 And despite
his management position over the pantry-aisle, Davidson never
spoke with Gouda regarding the accident, that day or subsequently
(Davidson Dep. 25:16-18). Such a conversation could have quickly
addressed, while all the employees' memories were fresh, what
goods were stocked the day of the accident and whether the box of
cans had a place on one of the shelves or was originally destined
for return to the storeroom and forgotten, as plaintiff alleges.
Given the flat's weight, it is far more speculative to envision
customers hauling the case up and down the aisle and exerting the
effort to bend down and place it on the floor rather than to
shove it carelessly onto an arm's-reach-level shelf, on top other
goods, as plaintiff Olsen recalls Ravaioli doing.
C. Circumstantial Evidence In its Memorandum of Law in Support of Defendant K Mart
Corporation's Motion for Summary Judgment ("Defs.' Mem."),
defendant argues that plaintiff cannot produce any evidence that
it created the hazard causing her to fall (Defs.' Mem. at 11).
Consequently, defendant argues that plaintiff's theory is mere
"speculation" and "insufficient," and thus mandates summary
judgment (Defs.' Mem. at 15).
However, circumstantial evidence can defeat a summary judgment
motion if the defendant fails in its burden of proving there are
no issues of material fact. See Brito v. Manhattan and Bronx
Surface Transit Operating Auth., 188 A.D.2d 253,
590 N.Y.S.2d 450 (1st Dept. 1992). In Brito, Joao Brito ("Brito") was found
lying in a crosswalk immediately after defendant's bus made a
right turn into the crosswalk. Id. Brito sustained serious
injuries and was incapable of testifying at trial. Id. Because
there were no witnesses to the event which caused Brito's
injuries, plaintiffs had to prove their case through
circumstantial evidence. Id. Plaintiffs provided, among other
things, testimony from a tractor-trailer driver who observed
defendant's bus traveling at approximately ten to fifteen miles
per hour make the right turn into the crosswalk. Brito,
188 A.D.2d at 254, 590 N.Y.S.2d at 451. The driver also testified
that he noticed a pedestrian lying in the crosswalk immediately
after the bus passed. Id. Additionally, a bag of crushed
groceries was found next to Brito, and "produce from the bag was
smeared in the direction traveled by the bus whose right rear
tires bore traces of the same food particles." Id.
The Brito court found that plaintiffs established a prima
facie case of negligence based upon circumstantial evidence.
Id. In reaching this conclusion, the court took into account
the following evidence: the observation of Brito's body in the
crosswalk immediately after defendant's bus had completed its
turn; the link between the crushed produce and the bus; medical
opinions providing that the fractures to Brito's foot were "crush injuries," that
could not have been caused by a regular fall; and the proximity
and timing of the bus's movement. Id. at 254-55. Plaintiffs
defeated defendant's summary judgment motion through
circumstantial evidence, by sufficiently linking defendant's bus
to Brito's accident.
Here, like the plaintiffs in Brito, plaintiff Olsen has
provided circumstantial evidence that could lead a reasonable
juror to infer that defendant created the hazard causing her
injury. Specifically, defendant has not been able to rule out the
possibility that the box could have been left there by John
Gouda, as neither the pantry-aisle manager Davidson, nor the loss
prevention manager Ravaioli saw fit to question Gouda in the
aftermath of the accident. Still, Davidson recalls that Gouda did
stock the aisles that morning, and Ravaioli did not patrol the
aisle between Gouda's completion of stocking sometime before noon
and plaintiff's fall after 1 pm. Additionally, the weight of the
box, sixteen pounds, makes it unlikely that a customer would move
it onto the floor, and equally less likely that a customer would
have again moved it on top of the noodles boxes as Ravaioli
testified. The fact that the flat of Spaghetti-O's was still in
its plastic wrapping is also circumstantial evidence that it was
not meant for the shelves, since all other bulk items on the
shelves were without their plastic sheath.
Thus, it appears unlikely that the hazard was created by a K
Mart customer and quite possible that a reasonable jury could
infer that the hazard was created by a K Mart employee. See
Schneider v. Kings Highway Hosp. Center, Inc., 67 N.Y.2d 743,
490 N.E.2d 1221, 500 N.Y.S.2d 95 (1986) (providing that while
"[t]he law does not require that plaintiff's proof positively
exclude every possible cause" of an accident but defendant's
negligence, plaintiff must render "other causes sufficiently
remote or technical to enable the jury to reach its verdict based
not upon speculation, but upon the logical inferences to be drawn from the evidence"
(citations omitted)). Plaintiff is not required to "positively
exclude every other possible cause of the accident." Gayle v.
City of New York, 92 N.Y.2d 936, 937, 703 N.E.2d 758, 759,
680 N.Y.S.2d 900, 901 (1998) ("A plaintiff need only prove that it
was more likely or more reasonable that the alleged injury was
caused by the defendant's negligence than by some other agency."
(internal quotations omitted)). Thus, the fact that plaintiff has
no direct evidence to prove that defendant created the hazard
does not require summary judgment be granted.
Accordingly, the fact that plaintiff's claim, that defendant
created the hazard over which she fell, is based almost
exclusively on circumstantial evidence does not require summary
judgment for the defendants. The circumstantial evidence here is
enough to satisfy this Court that a jury could reasonably infer
that defendant created the hazard in the pantry-aisle.
D. Open and Obvious Condition
Defendant argues that the case of Spaghetti-O's was readily
observable and not inherently dangerous and that, consequently,
the complaint should be dismissed (Defs.' Mem. at 23). Plaintiff
counters by arguing that whether the condition was open and
obvious does not obviate defendant's lack of due care and only
goes to the issue of plaintiff's comparative fault (Pl.'s Mem. at
5). For the following reasons, defendant's motion for summary
judgment is also denied on this issue, because whether the hazard
was open and obvious is a question of material fact for the jury.
In Westbrook v. WR Activities-Cabreras Markets, the plaintiff
tripped over an unopened box measuring 2½ feet long by 1½ feet
wide by 10-12 inches high, which was left in the middle of the
aisle in a Met Foods supermarket. 5 A.D.3d at 70,
773 N.Y.S.2d at 40. There, as here, the defendants moved for summary judgment,
arguing that the box over which plaintiff fell did not "constitute a dangerous condition as a matter of law and did not
give rise to a duty to warn as it was open, obvious and readily
observable." Id. The court denied summary judgment and held
that "[e]ven if a hazard qualifies as `open and obvious' as a
matter of law, that characteristic merely eliminates the property
owner's duty to warn of the hazard, but does not eliminate the
broader duty to maintain the premises in a reasonably safe
condition." Id.; see also Cupo v. Karfunkel, 1 A.D.3d 48,
52, 767 N.Y.S.2d 40, 43 (2d Dept. 2003) (holding that open and
obvious nature of dangerous condition did not preclude finding of
liability against owners).*fn4
Furthermore, the court in Westbrook held that "[while] the
mere fact that a defect or hazard is capable of being discerned
by a careful observer . . . the nature or location of some
hazards, while they are technically visible, make them likely to
be overlooked." Westbrook, 5 A.D.3d at 72, 773 N.Y.S.2d at 41.
The court found that "[a] lone 10- to 12-inch-high box in a
supermarket aisle is, by definition, easily overlooked, creating
a hazard which can, and ought to, be removed." Westbrook,
5 A.D.3d at 75, 773 N.Y.S.2d at 44. The facts in the present case
closely mirror the facts in Westbrook, and a jury could find
that the box of Spaghetti-O's partially tucked under the bottom
shelf, protruding into the aisle could be "easily overlooked."
Thus, in Westbrook, the court held that the question of whether
the box was open and obvious was one for the jury, and in the
case at hand, it provides yet another question of material fact.
See Westbrook, 5 A.D.3d at 72, 773 N.Y.S.2d at 41 ("The question of whether a condition is open and
obvious is generally a jury question . . ."). See also
Femenella v. Pellegrini Vineyards, LLC, 16 A.D.3d 546,
792 N.Y.S.2d 122 (2d Dept. 2005) (holding that there was a genuine
issue of material fact as to whether the alleged unsafe condition
created by the positioning of plaintiff's chair too close to the
edge of raised outdoor patio was open and obvious, and as to
plaintiff's comparative negligence); Nezami v. Price Costco
Inc., 5 Misc.3d 1, 3, 783 N.Y.S.2d 200, 201 (N.Y.Sup. App.
Term, 2004) (holding "action should not have been dismissed on
the ground that the condition was open and obvious. Proof that a
dangerous condition is open and obvious no longer precludes a
finding of liability against a landowner, it is merely relevant
to the issue of plaintiff's comparative negligence."). CONCLUSION
In its motion for summary judgment, defendant had the burden of
establishing in the first instance that it did not create the
condition causing plaintiff's injuries, or otherwise have notice
of it. See Guiffrida v. Metro North Commuter R. Co.,
279 A.D.2d 403, 720 N.Y.S.2d 41 (1st Dept. 2001). Here, defendant
failed to satisfy that burden, as a reasonable jury could infer
that defendant's pantry-aisle employee John Gouda left the box of
wrapped Spaghetti-O's in the aisle after stocking the shelves the
morning of plaintiff's accident. Viewing the evidence in the
light most favorable to plaintiff, there are two material
questions of fact for the jury to determine: (1) whether the box
was left by Gouda or moved by a customer; and (2) whether the
placement of the box on the aisle floor was open and obvious, and
readily discernible, since plaintiff's description of the
accident supports a possible finding that the box, partially
tucked under the bottom shelf was not noticeable to a customer
reaching upwards to retrieve products off high shelves.
The deposition testimony of defendant's agents, Ravaioli and
Davidson, do not convince this Court that defendant absolutely
did not create the hazzard. Whether their testimonies are
credible is for the jury to determine, as is the question of how
the case of Spaghetti-O's migrated from its place either on the
shelves or in storage to its fateful resting-place on the
pantry-aisle floor the afternoon of plaintiff's accident.
Additionally, once the jury determines the facts, if it were to
find that defendant created the hazard, the question of whether
the hazard was "open and obvious" would be one for them to decide
A plaintiff opposing such a motion for summary judgment, must
come forward with evidence of sufficient facts from which
defendant's negligence and causation could be inferred. See
Salkey v. New York Racing Ass'n, 243 A.D.2d 621,
665 N.Y.S.2d 521 (2d Dept. 1997). Plaintiff has satisfied this burden. For the above reasons, I find that there
are triable issues of fact as to whether defendant created the
situation from which plaintiff's accident resulted and whether
the case of wrapped Spaghetti-O's cans was "open and obvious."
Defendants' motion for summary judgment is therefore denied.
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