The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.
Defendant K-Mart Corporation á("K-Mart" or the "Defendant") has moved pursuant to Rule 56, Fed. R. Civ. P., for summary judgment to dismiss the slip-and-fall complaint of plaintiff Zoraida Gonzalez ("Gonzalez" or the "Plaintiff"). On the facts and conclusions set forth below, the motion is granted and the Complaint dismissed.
The Complaint was filed in the Supreme Court of the State of New York, County of New York, in December 2004, alleging that Defendant negligently caused Plaintiff to slip and fall while shopping at K-Mart. On February 1, 2005, the action was removed to this Court pursuant to 28 U.S.C. § 1332. Discovery proceeded, and the instant motion was marked fully submitted on April 9, 2008.
The facts are set forth in the K-Mart Statement of Facts pursuant to Rule 56.1 ("K-Mart Statement"), Plaintiff's Affirmation in Opposition ("Gonzalez Statement"), the affidavits of Pernell John ("John Decl.") and Juan Lazo, both of whom worked at the K-Mart store where the fall took place, and Plaintiff's Deposition of August 2, 2005. The facts are not in material dispute except as noted below.
On June 1, 2004, Gonzalez arrived at K-Mart, located at 1 Penn Plaza, with her mother, Felicita Hernandez, her daughter, Zoraida Hernandez, and her cousin, Jose Cosme. Gonzalez entered the store at approximately 8:45 p.m., and proceeded to the Health and Beauty Department on the store's lower level.
Two to three steps into an aisle in the Health and Beauty Department, Gonzalez slipped and fell. At the time she entered the aisle where her accident took place, Gonzalez's mother, daughter, and cousin were elsewhere in the store. Immediately prior to her fall, Plaintiff noticed a customer walking toward her and a K-Mart employee approximately two aisles over.
Gonzalez did not see what she slipped on prior to her accident. The aisle where the fall took place was well lit, and she did not have any problems seeing. After the accident, Gonzalez looked on the floor and saw a circular puddle of clear hair gel approximately eight-by-eleven inches in size. Gonzalez does not know how the gel came to be on the floor or how long the gel had been there. She does not know if anyone complained to K-Mart about the hair gel prior to her accident.
After the fall, K-Mart employee Pernell T. John ("John") came upon Gonzalez and observed her in a "semi-sitting" position on the floor of the aisle containing hair care products with her legs flat on the floor and leaning to the right side. Gonzalez was taken by ambulance to St. Vincent's Hospital, and upon later medical testing and treatment it was determined that, as a result of the fall, she sustained injuries to her left shoulder, neck and upper extremities, including complex regional pain syndrome, and bilateral carpal tunnel syndrome requiring surgical intervention.
John was a K-Mart associate who worked in the Health and Beauty Department of the 1 Penn Plaza store. As an associate, John was responsible for inspecting the floor, helping customers, and maintaining the Department. Part of his duties included walking the floor once every thirty minutes to make sure that the floor was in a safe condition.
Additionally, throughout the day, K-Mart loss prevention employees, store management, and maintenance personnel would patrol the entire store, including the Health and Beauty Department. This procedure ensured that the store was inspected at least once every ten to fifteen minutes when open.
On the day of the incident, at approximately 9:30 p.m., John was conducting a walk through the Health and Beauty Department when he noticed a jar of hair gel with a loose top and a puddle of hair gel on the floor. John did not know who spilled the gel or how long it had been on the floor before he discovered it. No one from K-Mart had received any complaints regarding the hair gel prior to his noticing it.
John picked up the hair gel container and went to retrieve a hazard sign, which he could not locate. He then walked to the service desk approximately fifty feet away to retrieve cleaning materials. Two to three minutes passed between the time John first observed the spill and the time he returned ...