The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiffs Yin Wang ("Wang") and her husband, Yap Shing Chan ("Chan"), bring this negligence action against defendants Yum! Brands, Inc., and KFC U.S. Properties, Inc., seeking to recover damages for injuries allegedly arising from Wang's slip and fall in a restaurant owned by defendants. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure as against plaintiffs' tort claims and, in the alternative, to preclude plaintiffs from offering evidence of lost wages. Plaintiffs also cross-move for summary judgment as to the issue of defendants' liability. For the reasons that follow, defendants' motion is denied in part and granted in part, and plaintiffs' motion is denied in its entirety.
The facts described below are taken from the parties' depositions. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2001).*fn1
Defendants own and operate the Kentucky Fried Chicken restaurant located at 40-42 Main Street in Flushing, Queens County, New York (hereinafter, "the restaurant"). (Pls.' Cert. ¶ 3.) At around 4:00 p.m. on October 15, 2004, while it was raining outside,*fn2 Wang entered the restaurant. (Wang Tr. at 18.) After ordering and picking up her food, Wang turned, walked four or five steps, then slipped and fell to the ground. (Wang Tr. at 18.)
Wang asserts that, when she entered the restaurant, the "ground was dry." (Id. at 28.) However, according to Wang, after she had fallen, she touched the floor with her hand and felt a "very, very slippery [substance]. . . like a soap, like a detergent." (Id. at 22, 70.) Wang also asserts that, after she had fallen, she saw an employee of the restaurant nearby mopping the floor. (Id.) According to Wang, there were no signs warning patrons that the floor was wet and/or slippery near the area where she fell. (Id.)
The restaurant's general manager, Archie Kuo ("Kuo"), testified that the area where Wang fell was "[a]lways wet" on rainy days, such as the day that Wang fell, due to customers tracking in rain water from outside. (Kuo Tr. at 161.) However, Kuo also testified that, on the day that Wang fell, floor soap had been applied to the floor at some point during the day, that employees used a certain type of chemical soap whenever they mopped the floor, and that there was "[s]upposed to be a lot of mopping" that day. (Id. at 94-95.) Furthermore, according to Kuo, at the time that Wang fell, the area where she fell was wet, although Kuo could not tell whether that wetness was due to the rain tracked in by customers, the floor soap that had previously been applied to the area, or some combination thereof. (Id. at 128.) Finally, Kuo testified that, although there was "supposed to be" a sign warning patrons whenever the floor was wet, Kuo did not recall seeing such a sign on the day that Wang fell. (Id. at 136.)
Wang asserts that, following her fall, she immediately experienced pain in her arms, back and lower back. (Wang Tr. at 23.) According to Wang, the pain has not decreased in intensity since the time she fell. (Id. at 58.) As a result, Wang asserts that, since the time of her fall, she has been physically unable to continue her prior work as a waitress in a Chinese restaurant in Philadelphia, Pennsylvania, or to work anywhere else. (Id. at 11, 63-64.)
Plaintiffs filed the complaint in this action on March 1, 2005, in the Supreme Court of the State of New York, Queens County. Defendants removed the case to this Court on diversity grounds on April 8, 2005. The case was reassigned to the undersigned on February 10, 2006. Defendants submitted their motion for summary judgment on March 1, 2007. Plaintiffs submitted their crossmotion on March 30, 2007. Oral argument was held on April 4, 2007.
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court 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); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 247-48. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth "concrete particulars" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (internal quotations ...