United States District Court, E.D. New York
Peter D. Baron, Baron & Pagliughi, Esqs., Cold Spring Harbor, NY, Attorney for Plaintiff.
Jennifer C. Friedrich, Patricia A. O'Connor, Brody, O'Connor & O'Connor, Esqs., Northport, NY, Attorneys for Defendant.
MEMORANDUM AND ORDER
JOAN M. AZRACK, Magistrate Judge.
On February 24, 2009, plaintiff Ilmije Thaqi ("Thaqi" or "plaintiff") filed suit against defendant Wal-Mart Stores East, LP ("Wal-Mart" or "defendant") for personal injuries she sustained when she slipped and fell in defendant's store. The parties have consented to me for all purposes, including entry of final judgment. (ECF No. 42.) Presently before me is Wal-Mart's motion for summary judgment, which contends that plaintiff has not established that Wal-Mart was negligent. For the reasons discussed below, Wal-Mart's motion for summary judgment is denied.
I. FACTUAL BACKGROUND
A. The Incident
On August 6, 2007, at approximately 7:00 p.m., plaintiff walked into a Wal-Mart in Woodbridge, New Jersey with her daughter-in-law, Lyra Thaqi. (Deposition of Lyra Thaqi ("L. Thaqi Dep.") at 21:13-23, 22:5-8, Aff. of Patricia O'Connor in Supp. of Mot. for Summ. J. ("O'Connor Aff.") Ex. E, ECF No. 52.) Within minutes of entering the store, plaintiff slipped and fell on a puddle of clear liquid. (Deposition of Ilmije Thaqi ("I. Thaqi Dep.") at 35:10-15, 41:25-42:8, O'Connor Aff. Ex. D; L. Thaqi Dep. 23:4-6, 35:21-36:5.) Plaintiff did not see the liquid before she fell and maintains that she was not carrying anything in her hands at the time of the fall. (I. Thaqi Dep. 33:16-25, 42:6-8.) After plaintiff fell, a Wal-Mart employee told Lyra Thaqi that the employee felt bad because they had called maintenance, but maintenance had not arrived yet. (L. Thaqi Dep. 44:2-6.) Lyra Thaqi admits that maintenance ended up arriving "30 seconds" or a "minute" after plaintiff fell. (Id. at 44:14-16.)
Various Wal-Mart employees were in the vicinity of the spill, both before and after the accident. They have provided somewhat varying accounts concerning the spill and Wal-Mart's response. Their accounts of these events come from their deposition testimony and from investigative notes compiled by Claims Management, Inc. ("CMI"), a Wal-Mart subsidiary that investigates potential claims against Wal-Mart. (CMI Investigatory Notes ("CMI Notes"), Aff. of Peter Baron in Opp. to Mot. Summ. J. ("Baron Aff."), ECF No. 55; Def.'s Feb. 14, 2013 Ltr., ECF No. 61; see also Deposition of Caridad L. Colio ("Colio Dep.") at 90:18-25, O'Connor Aff. Ex. F (employee witness who testified that the "[h]ome office" called to speak with her about the accident).) CMI spoke to the relevant employees in August 2008 and summarized these conversations in CMI's investigative notes. (CMI Notes.)
1. Isabel Pinho
Shortly before plaintiff fell, Isabel Pinho ("Pinho"), a front-end supervisor for Wal-Mart, was serving as a door greeter. (Deposition of Isabel Pinho ("Pinho Dep.") at 9:16-22; 16:8-10.) An unidentified Wal-Mart employee from the pet department tapped Pinho on the shoulder and pointed out a spill to her. (Id. at 21:13-24:7.) The unidentified employee had come from the direction of the spill. (Id. at 94:10-12.) Pinho could see the spill, which was located near the Family Fun Center and the Subway restaurant, both of which were close to the store's entrance. (Id. at 24:23-25, 70:9-13.) The spill was about a "car-and-a-half length away" from Pinho. (Id. at 24:16-22.) Pinho saw a large 64-ounce soda cup on the floor and a puddle of liquid about eleven by seventeen inches in circumference. (Id. at 25:6-29:5.) Pinho did not know how long the liquid had been on the floor before the employee from the pet department notified her. (Id. at 25:8-9, 26:21-25, 28:4-5.)
After seeing the spill, Pinho yelled to Mayra Ramos ("Ramos"), a Wal-Mart employee located in the nearby customer service department, to call maintenance to clean up the spilled liquid. (Id. at 33:25-37:19.) Pinho saw Ramos get on her walkie-talkie. (Id. at 98:7.)
After speaking to Ramos, Pinho turned around to walk over to the spill; when she did, she saw plaintiff already on the floor. (Id. at 39:9-41:8.) According to Pinho, it was "a matter of seconds" between her request to Ramos and plaintiff's fall. (Id. at 40:1-7, 71:24-6.)
Pinho did not ask the pet department employee, who initially notified her of the spill, to stay in the area until the spill was cleaned up-her "main concern was to get somebody to get over there, and [she] just didn't think about that." (Id. at 44:3-5.)
2. Caridad Colio
Caridad Colio ("Colio"), another employee, maintains that she witnessed plaintiff's fall. (See generally Colio Dep.) Colio worked in the customer service department and as a cashier. (Id. at 27:19-21, 54:12-24.) During the incident, Colio was working in the customer service department. (Id. at 54:23-24.)
Colio saw plaintiff fill a lidless paper cup with soda from the Subway soda fountain. (Id. at 58:9-61:10, 63:18-21.) Seconds later, Colio saw plaintiff spill soda and slip on the liquid. (Id. at 58:9-64:25.) Colio paged the assistant manager and maintenance over the loudspeaker to notify them of the incident. (Id. at 75:12-20, 77:16-19.)
In addition to witnessing plaintiff's fall, Colio also maintains that, less than two minutes before plaintiff's fall, Colio had walked past the accident site and did not see liquid on the floor. (Id. at 101:20-103:17.)
3. Maria Rivera
The CMI Notes include statements from Maria Rivera ("Rivera"), a Wal-Mart maintenance employee, who maintains that she was called to clean up the liquid and witnessed plaintiff's fall. (CMI Notes at 9.) According to Rivera's statements included in the CMI Notes, there were two different liquid spills three feet apart from one another. (Id.) Rivera recollected that "[t]here were 2 different spots of liquid, [and that she] was cleaning 1 when [plaintiff] fell in [the] second [spot]." (Id.) The CMI Notes also indicate Rivera "was ...