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Salerno v. Eckerd Corp.

February 15, 2008

FRANK SALERNO, PLAINTIFF,
v.
ECKERD CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM AND ORDER

Plaintiff Frank Salerno ("Plaintiff"), a New York resident, brings this "slip and fall" negligence action against defendant Eckerd Corporation ("Defendant" or "Eckerd"), a Florida corporation. Defendant now moves for summary judgment. For the reasons set forth below, Defendant's motion is granted.

I. Background

The following facts are construed in a light most favorable to non-moving Plaintiff.*fn1 Early in the morning of October 8, 2003, around 1:00 a.m., Plaintiff walked from his home, past the Defendant's premises, to a nearby deli. (Compl. ¶ 4; Salerno Dep. 12:20-22.) As he passed Defendant's premises, he noticed that there were many garbage bags on the sidewalk adjacent to the premises. (Salerno Dep. 12:17-13:7.) On his return home, he walked along the sidewalk in front of Defendant's premises. (Compl. ¶ 4; Salerno Dep. 12:11-16.) It was raining and foggy, and it was dark, though there were streetlights that provided some visibility. (Salerno Dep. 28:4-19, 19:12-25.) The evening before, at around 9:00 p.m. when Defendant's store closed, Defendant's employees had placed garbage bags full of trash on the sidewalk in front of Defendant's premises for garbage collection scheduled for that night.*fn2 (See Barton Dep. 7:21-8:8, 9:3-17, 14:2-15:9.) At the time Defendant was walking in front of the store, the garbage bags were strewn all across the entire width of the sidewalk, and some had been torn, with its contents spilling out. (Salerno Dep. 14:17-16:9; Sanders Aff.) There was little or no clear space through which Defendant could cross. (Salerno Dep. 17:6-18:4.) As Plaintiff attempted to walk over the garbage bags, his foot landed on a wet Eckerd circular,*fn3 upon which Plaintiff slipped and fell. (See Salerno Dep. 27:24-28:3, 32:19-23.)

II. Discussion

A. Summary Judgment Standard

Summary judgment is appropriate where "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). The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. - - -, 127 S.Ct. 1769, 1776, 167 L.Ed. 2d 686 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. at 1776.

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the nonmoving party may not rely on "[c]onclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), and must affirmatively "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship., 22 F.3d 1219, 1224 (2d Cir. 1994) (citation omitted).

B. Notice

Defendant contends that Plaintiff's action must be dismissed because Defendant neither created the condition that caused Plaintiff's accident, nor had notice of the condition. Plaintiff alleges that Defendant has failed to demonstrate that it did not create the dangerous condition or that it lacked notice. The court agrees with Defendant.

Under New York law, "[i[n order for a plaintiff in a 'slip and fall' case to establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition." Bykofsky v. Waldbaum's Supermarkets, Inc., 210 A.D. 2d 280, 281 (2d Dep't 1994). To succeed on a theory of 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." Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837-38 (1986).

Plaintiff has failed to establish that Defendant created or had actual notice of the alleged dangerous condition. Plaintiff's accident occurred at 1:00 in the morning, well after Defendant's employees put out the garbage bags for collection at 9:00 p.m. the evening before. The mere fact that, when Plaintiff fell several hours after Defendant's store closed, the garbage bags may have been strewn about and leaking on the sidewalk does not establish that Defendant's employees affirmatively placed the bags in a dangerous fashion on the sidewalk, or had actual notice of this condition.*fn4

Furthermore, Plaintiff has failed to demonstrate that Defendant had constructive notice of the alleged dangerous condition. Plaintiff does not know for how long the garbage bags had been strewn about and leaking. (See Salerno Dep. 32:24-33:6.) It is possible that a third party may have moved the garbage bags and torn them right before Plaintiff arrived on the scene. There is no evidence that any of Defendant's employees saw or were informed that the garbage bags had been moved and torn; indeed, there is no evidence that any of Defendant's employees remained at the store after the store's closing for a sufficient amount of time to have learned about the potentially dangerous condition. At best, Plaintiff's charge that Defendant had actual or constructive notice of the condition of its premises is entirely speculative, particularly given that Plaintiff's fall occurred well after the store had closed. See Mercer v. City of N.Y., 223 A.D. ed 688, 689 (2d Dep't 1996) ("[I]n the absence of any evidence of the origin of the patch of grease upon which the plaintiff allegedly slipped, or proof that it existed for a sufficient length of time to afford the defendant an opportunity to remove it, a finding that the defendant had constructive notice would be pure speculation.").

In support of its argument that Defendant had constructive notice, Plaintiff highlights the testimony of Victoria Barton, a manager at Defendant's store where Plaintiff's accident occurred.*fn5 Barton testified that, during the year she had worked at Defendant's store, she had sometimes witnessed that garbage bags had been moved and torn after they were put out to the curb following the store's closing. (Barton Dep. 18:16-23, 19:8-12.) She did not know who would do this, although she once saw a woman moving and ripping the garbage bags. (Barton Dep. 18:24-19:5.) She informed the woman not to move the bags. ...


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