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November 8, 2005.

MARIE A. OLSEN, Plaintiff,

The opinion of the court was delivered by: JOAN AZRACK, Chief Magistrate Judge


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 Opp. Ex.1-8).

  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. 38:18-19).

  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 fanciful.").

  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 ...

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