United States District Court, E.D. New York
For Jacqueline Lionel, Plaintiff: Kenneth Bornstein, LEAD ATTORNEY, Bornstein & Emanuel, P.C., Garden City, NY.
For Target Corporation, Defendant: Michael J. Crowley, LEAD ATTORNEY, Connell Foley LLP, New York, NY.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge.
On April 17, 2012, Plaintiff Jacqueline Lionel commenced this action against Target Corporation a/k/a Target Stores (" Target" ), in the Supreme Court of New York, Kings County, alleging a claim of negligence. Defendant removed the proceeding to this Court on October 26, 2012, based on diversity jurisdiction, and now moves for summary judgment. For the reasons set forth below, the Court grants Defendant's motion for summary judgment.
a. July 14, 2010 incident
On July 14, 2010, at approximately 9:15 p.m., Plaintiff entered a Target store at 2201 Nostrand Avenue in Brooklyn, New York. (Def. 56.1 ¶ 1; Pl. Opp'n 56.1 ¶ 1.) Customers enter this Target store by way of an escalator, which rises from a street-level entryway to the interior of the Target store, located on the first floor. (Deposition of Colden Jones, annexed to Declaration of Michael Crowley (" Crowley Decl." ) as Ex. I, (" Jones Dep." ), 29:7-24.) When customers get off the escalator on the first floor, they can observe the restrooms and the Target Guest Services offices directly in front of them. ( Id. at 31:17-32:3.) A Starbucks retail shop and a Target Café with a seating area for dining are located to the right of the escalators, while a corral for shopping carts and the Target merchandise area is located to the left, between two and twenty feet to the left of the top of the escalator. ( Id. at 32:4-35:10.) After stepping off the escalator, Plaintiff turned left and walked through a hallway or vestibule toward the shopping cart corral. (Deposition of Jacqueline Lionel, annexed to Crowley Decl. as Ex. E (" Lionel Dep." ), 18:25-19:25; Jones Dep. 34:25-35:4.) Plaintiff did not see anyone in the hallway or in the vicinity of the carts when she got off the escalator. ( Id. at 21:21-22:25.)
As Plaintiff was walking toward the carts and the merchandise area of the store, she slipped on a lid from a food container. (Def. 56.1 ¶ ¶ 4,7; Pl. Opp'n 56.1 ¶ 7; Lionel Dep. 27:22-28:8, 30:19-31:7.) Plaintiff did not see the lid before she slipped on it, as she was looking directly ahead to the carts rather than at the floor. (Def. 56.1 ¶ 6; Pl. Opp'n 56.1 ¶ 6; Lionel Dep. 87:17-24.) Plaintiff fell to the floor, striking her right knee on the floor and injuring her right knee and ankle.
(Lionel Dep. 33:4-34:11.) A Target manager and another employee assisted Plaintiff to her feet and had her sit in a nearby chair, where Plaintiff for the first time observed the lid that she slipped on. ( Id. at 30:5-7; 35:8-25.) Plaintiff also observed wet paper towels approximately one to two feet away from the lid, which looked like they had been used to wipe up spilled food. ( Id. at 26:10-29:3; Pl. Opp'n 56.1 ¶ 11.)
Plaintiff told the manager that she had slipped on a lid. (Lionel Dep. 39:18-21.) Both Plaintiff and the manager took photographs of the lid. ( Id. at 39:12-14.) Plaintiff's photographs do not include the wet paper towels, because she no longer saw them on the floor by the time she Case took the photographs.( Id. at 31:8-20.)
According to Colden Jones, an Executive Manager at the Target store, anytime a guest is injured in the store, the leader on duty (" LOD" ) generates a Guest Incident Report by interviewing the injured guest, and completes a LOD Investigation Report. (Jones Dep. 46:10-50:13.) Sheldon Thomas, the Target manager, completed a written Guest Incident Report which Plaintiff signed without reading. (Lionel Dep. 40:19-41:9; Guest Incident Report dated July 14, 2010, annexed to Crowley Decl. as Ex. D (" Guest Incident Report" ), 1.) The Guest Incident Report states that the cause of the accident was " unknown," that the floor was clean and dry, and that there was no object involved. (Guest Incident Report at 1.) An unsigned LOD Investigation Report, states that the floor was clean and dry at the time of the incident, that this was determined through " [a] visual look," and that the " source of the substance or condition" could not be determined.(undated LOD Investigation Report, annexed to Crowley Decl. as Ex. H (" LOD Report" ), 1.) The parties agree that Target employees regularly walk the area where Plaintiff slipped and fell. (Pl. Opp'n 56.1 ¶ 14; Def. Reply 56.1 ¶ 14.)
b. Plaintiff's medical treatment
Plaintiff was taken by ambulance to Interfaith Hospital. (Lionel Dep. 44:25, 49:18.) X-rays were taken of Plaintiff's knee and Plaintiff was given prescription painkillers. (Lionel Dep. 51:5, 52:14.) Plaintiff was referred to Kings County Hospital's orthopedic clinic where she received physical therapy. ( Id. at 59:13-17, 60:11-19.) At some time in 2012, Plaintiff visited Bay Ridge Orthopedics and was informed that she ...