United States District Court, E.D. New York
For Rhonda Feder, Kenneth Feder, Plaintiffs: John H. Lee, LEAD ATTORNEY, McNicholas & Lee, Flushing, NY; Shawn Michael Cestaro, McNicholas, Lee & Cestaro, P.C., Flushing, NY.
For Target Stores, Target Corporation, Westbury Holding Company, Defendants: Sal F. DeLuca, LEAD ATTORNEY, Simmons Jannace, LLP, Syosset, NY; John H. Lee, McNicholas & Lee, Flushing, NY.
MEMORANDUM AND ORDER
HON. WILLIAM F. KUNTZ, II, United States District Judge.
Plaintiffs Rhonda Feder and Kenneth Feder bring this negligence action against Defendants Target Stores, Target Corporation, Dayton Hudson Corporation, and Westbury Holding Company. Plaintiff Rhonda Feder alleges that she slipped and fell on a piece of plastic left on the floor of a Target store; her husband, Kenneth Feder, alleges that he suffered by paying for her resulting medical treatment and by loss of consortium. Defendants Target Stores, Target Corporation, and Westbury Holding Company (collectively, the " Target Defendants" ) now move for summary judgment. The Target Defendants argue that Plaintiffs have not established a prima facie case of negligence, and that Westbury Holding Company, as an out-of-possession landlord, did not owe Plaintiffs any duty. Defendants' Motion for Summary Judgment is DENIED as to negligence, but GRANTED as to Westbury Holding Company.
A. Relevant Facts
This diversity action centers on a slip-and-fall incident in a Westbury, New York
Target store. See Dkt. 1 (" Compl." ). Plaintiff Rhonda Feder alleges that she was present in the Target store on February 5, 2011 when she slipped and fell on a plastic strap lying on the floor. Compl. at ¶ 73; Dkt. 65 at ¶ 3. The plastic tie that Rhonda Feder fell on was a 3-4 foot long, white plastic tie that " appeared . . . had been cut." Dkt. 63 Ex. L, 2; Ex. G1.
Target is divided into aisles, with two numbers assigned per aisle. Id. at Ex. J, 51. By this numbering system, Rhonda Feder's incident occurred in the back of Aisle D34, which was a " Domestic" aisle containing rugs. See id. at Ex. G(1); Ex. J, 51.
Target sold or used similar ties to the one on which Rhonda Feder fell. First, as Target employee Alan Yamaji testified, Target carried plastic strips similar to the one that Plaintiff slipped on to wrap coolers. See id. at Ex. H, 34-36. Those coolers were carried in a different section of the store from where Rhonda Feder fell, in the sporting goods section approximately 20 aisles away. Id. Second, Target employee Ana Brown testified that Target used " creamish" and " wider" plastic ties on its doormat boxes, which were, to the best of Brown's knowledge, located in Aisle 36. See id. at Ex. J, 30; 42-44; 52.
During Brown's " in-stock" responsibilities--e.g., when she was re-filling the shelves with products--she would cut the plastic straps on the doormat boxes with a boxcutter, open the box containing the products, and then restock the products onto the shelves. Id. at 43-44. Brown would then place the boxes and plastic ties into a regular shopping cart she had brought with her, and bring that shopping cart to the back of the store to dispose of the packaging materials. Id. at 45-46. When Brown performed these in-stock tasks, she would work in " every area," id. at 35, and occasionally she would stock from a cart that had mixed types of products. Id. at 47-48.
When Plaintiff's slip-and-fall incident occurred in Aisle D34, Brown was performing her in-stock duties and was on her way to throw out the garbage after stocking the shelves. Id. at 55. Brown could not remember specifically which section the garbage was from, but she did recall that it was a mix of " box and plastic." Id. at 55-56. Brown also recalled that she had gone through the aisle ...