The opinion of the court was delivered by: Seybert, District Judge
On July 5, 2007, Louis Feis and Francis Feis ("Plaintiffs") filed a Complaint with this Court alleging that Louis Feis ("Plaintiff")*fn1 slipped and fell on a wet floor at a Veteran's Administration ("VA") Hospital. Defendant filed a motion for summary judgment on February 17, 2009, seeking dismissal of Plaintiffs' Complaint. For the reasons stated below, Defendant's motion is granted in its entirety.
The following facts are taken from Defendant's 56.1 Statement and the exhibits thereto.*fn2
Plaintiff received physical therapy from a VA Hospital (the "Hospital") for his shoulder pain. (Def's. R. 56.1 Statement ("Def's. Stmt.") ¶¶ 2, 3.) On May 12, 2005, Plaintiff was a patient at the Hospital. (Id. ¶ 4.) On that date, Plaintiff fell in a well-lit hallway in the basement of the hospital. (Id. ¶¶ 7, 9.) Plaintiff alleges that the Hospital used a machine to clean the hallway floors, and that the machine often leaked water onto the floor, causing Plaintiff's fall.
Plaintiff generally arrived at the Hospital at the same time for his physical therapy sessions. (Id. ¶ 15.) Plaintiff did not see anyone cleaning the floor on the morning of his fall, nor had Plaintiff ever seen anyone cleaning the floor at the time he arrived for his therapy. (Id. ¶¶ 13, 14.) Additionally, Plaintiff did not see a cleaning machine in the hallway on the day of his fall. (Id. ¶ 16.)
Defendant had a policy and procedure in place for cleaning the floors in the basement. (Id. ¶ 27.) John Downey ("Downey"), who was responsible for housekeeping, testified that the hallway where Plaintiff fell was cleaned during the evening shift, between 3:30 p.m. and midnight. (Id. ¶ 28.) According to Downey, the area was cleaned closer towards the end of the evening shift, after 9:00 p.m., due to the activity level in that hallway. (Downey Dep. P. 16, 18.) Downey testified that the hospital's policy was to mop reported spills immediately, place caution signs in the area of the spill, and have an employee stay at the site of the spill until the floor was dry. (Def's. Stmt. ¶ 30; Downey Dep. P. 20.)
In May of 2005, David Westman ("Westman"), a physical therapist at the hospital, worked during the hours of 7:30 a.m. to 3:30 p.m. (Westman Dep. P. 16). Westman testified that he did not recall seeing the cleaning machine that Plaintiff claims caused his fall in the morning hours, although he did recall seeing the machine occasionally during his regular working hours. (Id. Dep. P. 16, 17.) Westman did not recall seeing the machine in use on the day of Plaintiff's fall. (Id. P. 18.)
Kenneth Tiedemann ("Tiedemann"), a VA employee, was assigned to clean the basement where Plaintiff fell. (Def's. Stmt. ¶ 31.) Tiedemann testified that he was not trained to use the floor scrubber machine that Plaintiff claims caused his fall. (Id. ¶ 32.) Tiedemann was the only housekeeping aide in the basement at the time of Plaintiff's fall. (Tiedemann Dep. P. 19.) Tiedemann further testified that he had never seen any leaks caused by the machine. (Tiedemann Dep. P. 15.)
Plaintiff testified that he "probably" saw water on the floor prior to May 12, 2005, but "never paid attention to it." (Pl.'s Dep. P. 40). Plaintiff recalled complaining once to the person who cleaned the floor that water was left on the floor by the cleaning machine. (Id. P. 45.) Plaintiff could not recall exactly what this person looked like, but recalled that he was Black, wore glasses, and was approximately five feet, seven inches tall. (Id. P. 43, 44.)
Plaintiff testified that he never saw anyone cleaning the floor in the mornings before his physical therapy. (Id. P. 37.) Plaintiff then testified that he always saw the cleaning machine in the morning, and then again testified that he never saw anyone cleaning the floor in the early morning.*fn3 (Id. P. 38, 39.)
I. Standard of Review on Summary Judgment
"Summary judgment is appropriate where there are no genuine disputes concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); ...