The opinion of the court was delivered by: Debra Freeman, United States Magistrate Judge
In this personal injury case, before me on consent pursuant to 28 U.S.C. § 636(c), defendant Gramercy Tavern Corp. ("Defendant") has moved for summary judgment to dismiss the claims of plaintiffs Judith Lynn Haberfeld ("Ms. Haberfeld") and Henry Haberfeld ("Mr. Haberfeld") (collectively, "Plaintiffs"). For the reasons set forth below, Defendants' motion (Dkt. 16) is granted, in part, and denied, in part.
1. Ms. Haberfeld's Accident and Injuries
This case arises out of a slip and fall at Gramercy Tavern, a New York City restaurant and tavern owned and operated by Defendant. (Defendant's Statement of Material Facts, dated May 1, 2008 ("Def. Rule 56.1 Stmt.") (Dkt. 17), at ¶ 2.) On May 10, 2005, between 6:30 and 7:00 p.m., Ms. Haberfeld and her colleague, Gianna Zajac ("Zajac"), arrived at Gramercy Tavern to meet business clients. (Affirmation in Support of Motion for Summary Judgment of Susan Smodish, dated May 1, 2008 ("Smodish Aff.") (Dkt. 18), Ex. D (Transcript of deposition of Judith Haberfeld, conducted July 17, 2007 ("Judith Haberfeld Dep.")), at 11-13.) Upon their arrival, hostess Molly Ryman ("Ryman") greeted them at a hostess station in front of the establishment's main entrance, indicated that their clients had already arrived, and led Ms. Haberfeld and Zajac to the bar area of the restaurant to meet the rest of their party. (Smodish Aff., Ex. F (Transcript of deposition of Molly Ryman, conducted Nov. 13, 2007 ("Ryman Dep.")), at 18-19.)
More precisely, it appears that Ms. Haberfeld and Zajac followed Ryman down a hallway that led into the "tavern" section of the restaurant (the "Tavern"), a casual dining area with 14 tables that is set apart from the restaurant's main dining room. (Judith Haberfeld Dep., at 19.) Ms. Haberfeld followed directly behind Ryman; Zajac directly behind Ms. Haberfeld. (Smodish Aff., Ex. E (Transcript of deposition of Gianna Zajac, conducted Dec. 7, 2007 ("Zajac Dep.")), at 17.) The floor in the Tavern is made of wood; a grill is located on one side of the Tavern; and the other side opens up into the bar area. (Def. Rule 56.1 Stmt., at ¶ 3; Ryman Dep., at 12-13, 19.) After taking 12 to 15 steps towards the bar area, Ms. Haberfeld's feet slipped out from under her; she fell on her back, legs, and buttocks, and sustained injuries. (Judith Haberfeld Dep., at 18-20, 54.) Plaintiffs claim, and Defendants deny, that the floor was wet in the location of the accident.
There are two ways to pass through the Tavern into the bar area. (Ryman Dep., at 43.) The path that Ryman, Ms. Haberfeld, and Zajac used on the evening in question runs alongside a silverware hutch, which has a counter on which wait staff store glassware, plates, and other items (Ryman Dep., at 25.) Moreover, during dinner hours, three pitchers of water rest on the silverware hutch, where staff can access them, carry them to tables, and fill patrons' water glasses. (Smodish Aff., Ex. G (Transcript of deposition of Erin Ward, conducted Jan. 23, 2008 ("Ward Dep.")), at 22-23.)
The path to the bar area narrows as it passes the silverware hutch. It is only three to four feet wide at that point, with the silverware hutch immediately to the right and a table immediately to the left. (Def. Rule 56.1 Stmt., at ¶ 6; Ryman Dep., at 43.) Ms. Haberfeld slipped and fell as she was passing through this narrow portion of the pathway and apparently landed in between the silverware hutch and the table. (Def. Rule 56.1 Stmt., at ¶ 5.) At the time of the incident, which was in the middle of a dinner shift, the restaurant was busy; all 14 tables in the Tavern were occupied by customers, and several people were seated at and standing near the bar. (Ryman Dep., at 42, 44.) Two unidentified patrons were seated at the table just to the left of where Ms. Haberfeld fell. (Judith Haberfeld Dep., at 30.)
Ms. Haberfeld did not look at the floor before or after she fell. (Def. Rule 56.1 Stmt., at ¶¶ 7, 9.) As she lay injured on her back, however, she wiggled her fingers to see if she had suffered a spinal cord injury. (Judith Haberfeld Dep., at 27-28.) It was then, she claims, that she realized that the fingers of her left hand were resting in some sort of liquid on the floor, which she characterized as something less than a "puddle." (Def. Rule 56.1 Stmt., at ¶ 10; Judith Haberfeld Dep., at 27-29.) She did not examine the liquid, but she testified that it felt neither hot nor sticky. (Judith Haberfeld Dep., at 28.)
Manager Erin Ward ("Ward") arrived soon after the fall to offer Ms. Haberfeld assistance. (Ward Dep., at 10.) Ward, Zajac, and others then helped Ms. Haberfeld to a cushioned bench near the front of the restaurant, where she awaited transportation to a hospital. (Id., at 16-17.) After the fall, Ms. Haberfeld told Ward that the floor was wet and insisted that she include this in an accident report that Ward was preparing. (Id., at 17; Smodish Aff., Ex. H (Incident Report, dated May 10, 2005).) By way of affidavit, Ms. Haberfeld has now stated that her pants and knee highs were wet after she fell. (Affidavit of Judith Haberfeld, dated May 21, 2008 ("Judith Haberfeld Aff."), at ¶ 2, attached to Affirmation in Opposition of James K. Greenberg, Esq., dated May 22, 2008 ("Greenberg Aff.") (Dkt. 20).) Further, Ms. Haberfeld's daughter, Jacqueline Haberfeld, who met her mother at the hospital, has stated in an affidavit that Ms. Haberfeld's knee highs were wet. (Affidavit of Jacqueline Haberfeld, dated May 22, 2008 ("Jacqueline Haberfeld Aff."), at ¶ 3, attached to Greenberg Aff.)
Zajac testified that she witnessed the fall and immediately knelt down to assist Ms. Haberfeld. (Zajac Dep., at 23-25.) She then overheard an unidentified woman -- one of the patrons sitting at the nearest table -- state that there was water on the floor and that the woman had previously instructed wait staff to clean it up.*fn1 (Id., at 28.) Zajac, however, did not examine the floor in the vicinity of the fall to see if there was any water. (Plaintiffs' Statement of Material Facts, dated May 21, 2008 ("Pl. Rule 56.1 Stmt.") (Dkt. 23), at ¶ 29.) She also testified that she did not notice any water on Ms. Haberfeld's clothing. (Zajac Dep., at 36-37.) Similarly, Ward and Gina Demayo ("Demayo"), a server who was working that night, both claim to have examined the floor after the fall and not to have found any water. (Ward Dep., at 17; Smodish Aff., Ex. I (Transcript of deposition of Gina DeMayo, conducted Jan. 23, 2008 ("DeMayo Dep.")), at 33.) Indeed, Demayo testified that she was at the silverware hutch "no more than a minute before" the incident and saw no water on the floor in the area of the fall. (Demayo Dep., at 24.)
Ryman did testify that, after the fall, she noticed "a few drops" of water underneath a gentleman's chair in the vicinity of the accident. (Pl. 56.1 Stmt., at ¶ 23; Ryman Dep., at 48-49.) She also testified that she had seen water on the floor in the location of the accident on prior occasions (Id., at 56), and Demayo conceded that she "probably" had as well (Demayo Dep., at 34).
2. Relevant Wait Staff Practices
During dinner hours, three water pitchers rest on the silverware hutch. (Ward Dep., at 23.) Throughout the shift, wait staff periodically fill these pitchers in the back of the restaurant and then bring them to the silverware hutch where they can access them. (Pl. Rule 56.1 Stmt., at ¶ 9.) According to Ryman, the pitchers "perspire" (Pl. 56.1 Stmt., at ¶ 32; Ryman Dep., at 56). This presumably means that drops of condensation form on them, which can drip off onto the silverware hutch or floor. According to Demayo, however, servers tie napkins around the pitchers to absorb condensation. (Demayo Dep., at 12.) Water glasses are generally not filled at the waiter ...