United States District Court, S.D. New York
David Resnick, Esq., Ephrem J. Wertenteil, Esq., David Resnick & Associates, New York, NY, Counsel for Plaintiff.
Steven M. Christman, Esq., Adam C. Calvert, Esq., Marshall Dennehey Warner Coleman & Goggin, New York, NY, Counsel for Defendant.
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, District Judge.
Plaintiff Belen Cruz commenced this action against Target Corporation ("Target") in New York Supreme Court, Bronx County, seeking to hold Target responsible for a fall on spilt water at a Target store and for subsequent injury to her right knee. Target removed the action. In the motion before the Court, Target seeks summary judgment. For the reasons set forth below, defendant's motion is denied.
On August 29, 2012, plaintiff and her nephew Mohammed
Mustafa walked from plaintiff's home to a nearby Target. See Pl. Dep. 52:11-16, 55:7-56:6. After shopping for some amount of time, plaintiff left Mustafa in order to examine a display of bagels that she (and possibly Mustafa) had passed five to ten minutes prior. See Pl. Dep. 60:14-17; but cf. Mustafa Dep. 8:16-9:2 (recalling that plaintiff and Mustafa had not passed through the area).
These bagels were located on a set of shelves directly between the ends of two aisles. See Pl. Dep. 56:20-57:8; Christman Decl., Ex. E ("Photograph") (photograph of shelves, as marked by plaintiff at Pl. Dep. 103:10-107:19).
Plaintiff approached the bagel display and stayed for "a minute or so, " Def.'s R. 56.1 ¶ 8, before turning away empty-handed. See Pl. Dep. 61:11-14. As she turned and took one or two steps away from the shelves, her right foot slipped backwards on the beige tile floor. Def.'s R. 56.1 ¶ 8; Pl. Dep. 63:13-21; see also Ojeda Dep. 29:5-15 (beige tile floor). She landed "heavy" on her right knee, Pl. Dep. 65:8-10, and then sat on the floor cradling her right knee with both hands. Pl. Dep. 76:5-77:20.
While plaintiff sat on the floor, she saw a "little puddle" of clear water where she had fallen, about three or four of her hand-widths wide. Pl. Dep. 79:11-13; see also 80:19-21, 81:18-19; cf. Ojeda Dep. 23:4-14 (describing an area of water that was not a "puddle"). She also noticed a Starbucks cup with drops of clear water in it, on the second shelf from the bottom, and directly above the spilt water. See Pl. Dep. 78:15-18, 84:6-13, 85:9-13; but cf. Mustafa Dep. 9:6-14 (stating that cup was still about one-quarter full of water). The Starbucks cup was tipped over in the direction of the shelf edge, and was set back from the edge. See Pl. Dep 79:3-4, 82:9-16; Mustafa Dep. 9:11-10:9. An opened stepstool, of the kind that Target employees commonly use to stock shelves, stood within a foot to the right side of the puddle. Pl. Dep. 86:8-87:4, 87:21-22; Photograph.
Nobody saw plaintiff fall, but, according to her, an unidentified bald African-American man approached plaintiff to ask if she was all right. Pl. Dep. 65:11-12, 70:8-71:4. Further, plaintiff maintains that this gentleman did not leave to summon any Target employee, although Jorge Ojeda (a Target employee who cleaned up the spill) says that he first learned of plaintiff's accident from an African-American man. Compare Pl. Dep. 71:18-21 and Pl. Aff. ¶ 5 with Ojeda Dep. 12:14-17, 16:10-13. Mustafa may have also arrived soon after the accident and may have left to seek help, although neither plaintiff nor Mustafa has been consistent on this point. Compare Pl. Aff. ¶ 4 (stating that Mustafa arrived a few minutes before a Target employee arrived) and Mustafa Dep. 13:3-9 (stating that Mustafa arrived, left to find help, and found a Target employee at the site of the accident when he returned) with Pl. Dep. 71:18-21 (suggesting that a Target employee arrived soon after the African-American gentleman approached plaintiff), Pl. Dep. 69:19-21 (estimating that Mustafa arrived five minutes after plaintiff's accident), Mustafa Dep. 7:5-6 (stating that plaintiff was alone when Mustafa arrived), and Mustafa Dep. 10:10 (stating that Mustafa found a Target employee to help).
In any case, it is undisputed that a Target employee arrived at some point. See Pl. Dep. 75:25-76:4; Mustafa Dep. 10:10-12; Ojeda Dep. 19:6-11. Plaintiff recognized this man as an employee by his Target nametag and his distinctive uniform of beige pants and a red shirt. See Pl. Dep. 72:14-73:4.
According to plaintiff, this employee carried a roll of paper towels and exclaimed, "Oh my God, I was on my way, it's mine." Pl. Aff. ¶ 4; accord Pl. Dep. 71:21-72:3, 78:12-14. However, Ojeda testified that he first learned of the spill from the African-American gentleman, and that Ojeda had to leave the spill location after he arrived in order to fetch paper towels from a nearby spill station. See Ojeda Dep. 12:14-17, 22:20-24, 25:15-20. Mustafa supports Ojeda's testimony by stating that the Target employee left the spill site for paper towels. See Mustafa Dep. 14:13-24.
Upon seeing plaintiff on the ground, the Target employee made a "funny face, " "like he didn't know what to do." Mustafa Dep. 10:8-14. Plaintiff asked the employee to report the accident, but the employee did not respond. See Pl. Dep. 72:3-5. The employee may have given plaintiff paper towels to clean herself with, see Pl. Dep. ...