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Decker v. Middletown Walmart Supercenter Store # 1959

United States District Court, S.D. New York

February 10, 2017




         Plaintiff Lynette Decker commenced this diversity action against Defendants Middletown Walmart Supercenter Store #1959 ("Middletown Store"), Wal-Mart Stores East, LP ("Wal-Mart Stores East"), Wal-Mart Stores, Inc. and Wal-Mart Associates, Inc. to recover for personal injuries allegedly sustained as a result of a fall at the Middletown Store on July 8, 2012. (Docket No. I).[1] Before the Court is Defendant's Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Motion"). (Docket No. 29). The Complaint was filed on April 14, 2015, (Docket No. 1), and the instant Motion was filed on August 30, 2016, (Docket No. 29). Plaintiff opposed the Motion on October 12, 2016, (Docket No. 33), and Defendant replied on October 19, 2016, (Docket No. 34).[2] For the reasons that follow, Defendant's Motion is granted, [3]

         I. BACKGROUND

         The following facts are gathered from Defendant's statement filed pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 56.1"), [4] (Docket No. 31), Defendant's exhibits, [5] and the pleadings submitted by the parties in support of their contentions. The facts are construed in the light most favorable to Plaintiff as the party opposing summary judgment.

         On July 8, 2012, Plaintiff visited the Middletown Store with her sister, Jennifer Cornman, and her nephew, Kevin Cornman. (Compl. at 2; Def. Ex. C at 2; Decker Dep. at 16:11-13, 20-24). Plaintiff was drawn to a display of twelve-packs of Coke, and turned to her sister to point out the display. (Decker Dep. at 19:10-21). As she turned to her sister, Plaintiff fell. (Id.). She did not see what caused her to fall. (Id. at 21:23-25; 23:7-13). Plaintiff was in the store for approximately two to four minutes before she fell. (Id. at 19:5-9). After she got up, Plaintiff observed a clear substance on the floor. (Id. at 23:14-24:2; 26:23-27:17; 31:3-7). The substance reminded her of a raw egg, and was about the size of an egg that had been cracked open, but Plaintiff did not believe the substance was in fact an egg. (Id. at 23:14-24:2; 28:14-30:19). A small portion of the back of her shirt was wet after the fall. (Id. at 27:25-28:13). The substance was subsequently cleaned up with paper towels. (Id. at 31:18-20). Plaintiff completed a customer statement, dated July 8, 2012 at 3:11 p.m., describing her accident. (Id. at 33:19-35:22; Def. Ex. E), In her statement, Plaintiff wrote that she "was walking in and fell on the floor there was a yellow slippery substance." (Def. Ex. E). After Plaintiffs fall, she left the Middletown Store and went in her sister's car to a hospital. (Decker Dep. at 33:19-24; 36:18-25; Cornman Dep. at 20:19-22).

         Plaintiffs sister entered the Middletown Store behind Plaintiff and had an unobstructed view of her prior to her fall. (Cornman Dep. at8:20-9:24; 11:24-12:13). She saw her sister fall, but did not see anything on the floor before the fall. (Id. at 11:24-12:13). After the fall, Plaintiffs sister approached her and she observed a substance that was "wet" and "slimy." (Id. at 15:18-20). She described it as "a raw egg and the yoke [sic] and like if it sits for a little bit it gets a little bit darker yellow." (Id. at 14:25-15:8). For this reason, she "was thinking it was an egg." (Id.). She believed the substance "looked like it was sitting for a while, " based on its color. (Id. at 13:4-8; 20:5-11). Neither Plaintiff nor her sister observed anything in the surrounding area that provided information as to the source of the substance. (Id. at 19:14-20:14; 21:23-22:2; Decker Dep. at 30:20-31:2). Plaintiffs sister completed a witness statement, dated July 8, 2012, that listed the time of the accident as 3:11 p.m. and stated that "[Plaintiff] was walking past register two and slipped and fell on a yellow substance which appeared to be a broken egg." (Cornman Dep. at 18:11-19:13; Def. Ex. G).

         According to Defendant's employee, the accident occurred in the "front end" of the Middletown Store.[6] (Campbell Dep, at 19:18-20:2; see also Cornman Dep. at 22:21-24). Defendant's employees are trained on the prevention of customer accidents, such as falls, and are directed to "keep an eye [out]" for unsafe conditions. (Id. at 19:6-17, 22:6-16). While maintenance staff is responsible for maintaining the floor throughout the whole store, the area in which Plaintiff fell is also monitored by cashiers and a customer service manager. (Id. at 19:6-17; 19:25-20:6; 21:9-17). Subsequent to Plaintiffs fall, an assistant store manager prepared a written claim report. (Def. Ex. I). The report identified the store manager at the time of Plaintiffs fall and a customer service manager who was the first to respond to the fall, described a yellow substance that was on the floor, and repeated Plaintiffs claim that she "fell on something." (Id; see also Campbell Dep. at 12:9-18).

         A surveillance video of the area where the accident occurred indicates that Plaintiff fell at 3:02:41 p.m. (Def. Ex. J). In the minutes leading up to the fall, the footage reveals that four other individuals walked through the same area without incident. (Id.). At 3:01:40 p.m., a man and a woman walked through the area; at 3:02:02 p.m., a third individual walked through the area; and, at 3:02:15 p.m., a fourth individual walked through the area. (Id.). Twenty-six seconds later, at 3:02:41 p.m., Plaintiff walked through the area and fell. (Id.). At 3:02:56 p.m., fifteen seconds after her fall, Plaintiff was up from the ground.[7] (Id.). At 3:04:29 p.m., Defendant's employees cleaned the substance from the floor with paper towels. (Id.).


         Under Rule 56 of the Federal Rules of Civil Procedure, the moving party bears the burden of demonstrating that it is entitled to summary judgment. See Haminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The Court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catreit, 477 U.S. 317, 322 (1986). A genuine dispute as to a material fact "exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cty. of Nassau, 524 F, 3d 160, 163 (2d Cir. 2008) (citation omitted); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). "A fact is material if it might affect the outcome of the suit under the governing law." Casalino v. N.Y. State Catholic Health Plan, Inc., No. 09 Civ. 2583 (LAP), 2012 WL 1079943, at *6 (S.D.N.Y. Mar. 30, 2012) (citation omitted).

         In reviewing a motion for summary judgment, the Court "must draw all reasonable inferences in favor of the [non-moving] party" and "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000) (citations omitted). That said, the Court may not weigh the evidence or determine the truth of the matter, but rather conducts "the threshold inquiry of determining whether there is the need for a trial." Anderson, 477 U.S. at 250.

         The moving party bears the initial burden of "demonstrating the absence of a genuine issue of material fact." Holcomb v. lona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex, 477 U.S. at 323). If the moving party meets this initial burden, the burden then shifts to the non-moving party to "present evidence sufficient to satisfy every element of the claim." Id. "The non-moving party 'is required to go beyond the pleadings' and 'designate specific facts showing that there is a genuine issue for trial, '" id. (citing Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 249-50), and "must do more than simply show that there is some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party fails to establish the existence of an essential element of the case on which it bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

         In the Southern District of New York, parties moving for and opposing summary judgment motions must also submit short and concise statements of facts, supported by evidence that would be admissible at trial. Local Civ. R. 56.1. The opposing party must specifically controvert the moving party's statement of material facts, or the moving party's facts will be deemed admitted for purposes of the motion. Local Civ. R. 56.1(c); T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) ("A nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible."). However, "uncontested fact[s] cannot be deemed true simply by virtue of their assertion in a Local Rule 56.1 statement"-in the absence of citations or "where the cited materials do not support the factual assertions in the [statements, the Court is free to disregard the assertion." Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (quotation marks and citations omitted). The Court therefore has discretion "to conduct an assiduous review of the record even where one of the parties has failed to file such a statement." Holtz, 258 F, 3d at 73 (quotation marks and citations omitted); see also Fed. R. Civ. P. 56(c)(3). Nevertheless, the Court is "not required to consider what the parties fail to point out." Monahan v. N.Y.C. Dep 't of Corr., 214 F.3d 275, 292 (2d Cir. 2000) (quotation marks and citations omitted).


         A. Burden of Proof for Summary Judgment

         New York law governs the substantive slip and fall claim.[8] However, federal law applies to procedural aspects of the claim. Hanna v. Plumer, 380 U.S. 460, 465 (1965). As Defendant correctly argues, the moving party's burden of proof on a summary judgment motion is procedural, and is therefore governed by federal law. Tingling v. Great All. & Pac. Tea Co., No. 02 CIV. 4196 (NRB), 2003 WL 22973452, at *2 (S.D.N.Y. Dec. 17, 2003) ("We find that the issue of what burden a movant for summary judgment bears when the ultimate burden of proof lies with the non-movant is procedural rather than substantive, under the distinction created by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) and its progeny, and accordingly is subject to federal rather than state law.") (citing Celotex, 477 U.S. 317); see also Hughes v. United States, No. 12 CIV. 5109 CM, 2014 WL 929837, at *4 (S.D.N.Y. Mar. 7, 2014) (applying the federal burden of proof standard on a motion for summary judgment, explaining that "[e]ven though the substantive claims are governed under New York law, the procedural issues are determined under the federal standard."); Doona v. OneSource Holdings, Inc., 680 F.Supp.2d 394, 396 (E.D.N.Y.2010) C'[T]he respective burdens that the parties bear in a summary judgment motion are procedural rather than substantive, and are thus subject to federal rather than state law.").

         The federal burden of proof on a motion for summary judgment differs from the corresponding standard under New York law on a slip-and-fall action. See, e.g., Tenay v. Culinary Teachers Ass'n of Hyde Park, 281 F.App'x 11, 12-13 (2d Cir. 2008); Vasquez v. United States, No. 14-CV-1510 (DF), 2016 WL 315879, at *4-5 (S.D.N.Y. Jan. 15, 2016). "Under New York law, '[a] defendant who moves for summary judgment in a [sl]ip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it.'" Vasquez, 2016 WL 315879, at *4 (quoting Levine v. Amverserve Ass'n, Inc., 938 N.Y.S.2d 593, 593 (2d Dep't 2012)). Conversely, under federal law, the moving party "need not make any affirmative prima facie showing on [a] motion for summary judgment, and may discharge its burden of proof merely 'by pointing to an absence of evidence to support an essential element of [Plaintiffs] claim.'" Id. at *5 (quoting Zeak v. United States, No. 11 CIV. 4253 KPF, 2014 WL 5324319, at *8 (S.D.N.Y, Oct. 20, 2014)) (citing Feis v. United States, 394 F.App'x 797, 798-99 (2d Cir. 2010) (applying New York substantive law and federal procedural law, finding that "contrary to plaintiffs assertions, defendant was not required to affirmatively disprove each element of plaintiff s [slip-and-fall] claim."); Hughes, 2014 WL 929837, at *4), [9] Therefore, because the burden of proof on a motion for summary judgment is procedural and federal law applies, Defendant may meet its burden by '"showing- that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case, '" but need not "raise a prima facie case." Hughes, 2014 WL 929837, at *4 (quoting Celotex, 477 U.S. at 325). If Defendant meets that burden, the burden then shifts to Plaintiff to present evidence on each element of the claim and demonstrate that a genuine issue of material fact exists for trial.[10] Celotex, 477 U.S. at 322-24; Holcomb, 521 F.3d at 137.

         B. ...

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