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Rivera v. Target Department Store, Inc.

United States District Court, S.D. New York

June 21, 2017

AIDA RIVERA, Plaintiff,
v.
TARGET DEPARTMENT STORE, INC., Defendant.

          OPINION AND ORDER

          HENRY PITMAN United States Magistrate Judge

         I. Introduction

         Plaintiff Aida Rivera initially filed this action in the Supreme Court of the State of New York in Bronx County asserting a single cause of action for negligence against defendant Target Department Store Inc. (see Complaint, dated Dec. 17, 2014, annexed as Ex. A to Declaration of Michael J. Crowley, Esq., dated Nov. 14, 2016 (Docket Item ("D.I.") 24) ("Crowley Decl.")). On October 2, 2015, defendant removed the action to this Court on the basis of diversity of citizenship pursuant to 28 U.S.C. Section 1332(a) (1) (Notice of Removal, dated October 5, 2015 (D.I. 1)). The parties have consented to my exercising plenary jurisdiction over this action pursuant to 28 U.S.C. § 636(c) (Docket Item 12).

         By notice of motion dated November 14, 2016 (D.I. 23), defendant moves for an Order, pursuant to Fed.R.Civ.P. 56, granting summary judgment and dismissing the complaint. For the reasons set forth below, defendant's motion is granted and the complaint is dismissed.

         II. Facts

         This action involves a slip and fall that occurred on the evening of July 4, 2014 sometime before 8:45 p.m. at a Target store located in Mount Vernon, New York (see Guest Incident Report, dated July 4, 2014 ("Guest Incident Report"), annexed as Ex. D to Crowley Decl.). Plaintiff went to the store at approximately 6:30 p.m. with her adult daughter, two grandchildren and friend, Indira Melara (Deposition of Aida Rivera, dated Mar. 1, 2016 ("Rivera Dep.") at 16, annexed as Ex. I to Crowley Decl.). Plaintiff and her companions were in the store between one hour and one and one-half hours prior to the incident that gives rise to this lawsuit (Rivera Dep. at 18). Prior to the incident, Ms. Melara and plaintiff's grandchildren separated from the group and went to the toy department (Rivera Dep. at 19). Plaintiff and her daughter, Arlene Melendez, were together for the duration of their visit to the store (Rivera Dep. at 19, 21) .

         Plaintiff's fall occurred as plaintiff and her daughter were walking together from the sports department towards the toy department to meet Ms. Melara and plaintiff's grandchildren (Rivera Dep. at 25). Plaintiff's left foot slipped on a puddle of water on the white-tiled floor and she fell (Rivera Dep. at 21-22, 25-26, 34). Plaintiff had not previously walked in this area during this particular visit to the Target store and did not see the water on the floor before she slipped and fell (Rivera Dep. at 20-22). Plaintiff testified that, as she fell, she observed a puddle of water on the floor that was between five and six feet long and two to three feet wide (Rivera Dep. at 21-22). Plaintiff did not know how the water came to be on the floor or how long the water had been on the floor prior to the incident (Rivera Dep. at 22) .

         Plaintiff testified that, after the fall, she spoke with a female security guard, informed her of the accident and asked to speak to a manager (Rivera Dep. at 29-30).

         Target employee Dermaine Brown also came to the scene after plaintiff's accident and prepared a written statement (see Team Member Witness Statement of Dermaine Brown, dated July 4, 2014, ("Brown Witness Statement"), annexed as Ex. H to Crowley Decl.). Mr. Brown noted that the floor was wet when he arrived at the scene but that "after a while the wet spot dried up" (Brown Witness Statement).

         Victor Hernandez, Executive Team Leader ("ETL") for Sales Floor Operations at the Target store, spoke with plaintiff following the incident and prepared a Guest Incident Report and a Leader on Duty ("LOD") Investigation Report (Deposition of Victor Hernandez, dated Mar. 10, 2016 ("Hernandez Dep.") at 18, 41-42, 61-62, annexed as Ex. K to Crowley Decl.; Guest Incident Report; LOD Investigation Report, dated July 4, 2014, annexed as Ex. E to Crowley, Decl.). Mr. Hernandez testified that pursuant to Target's protocol, all Target employees are trained to continuously walk the store and inspect the floor for any hazards (Hernandez Dep. at 11-12, 22-23). There was no scheduled time for a Target employee to sweep or mop the floor during open hours (Hernandez Dep. at 29). Mr. Hernandez testified that if the customer had a complaint, it would be reported to the LOD (Hernandez Dep. at 32). He further testified that he had not been notified of any spills or wet conditions within the Target store anytime after 7:00 p.m., on July 4, 2014 (Hernandez Dep. at 32-33) .

         Mr. Hernandez filled out the Guest Incident Report based on plaintiff's description of the incident (Hernandez Dep. at 41-42, 45-48) . The Guest Incident Report notes that plaintiff slipped as a result of a "wet spot on the floor" that had dried up by the time Mr. Hernandez arrived (Guest Incident Report). The LOD Investigation Report consists of a statement from Mr. Hernandez describing his observations of the subject incident (Hernandez Dep. at 61-62). The LOD Investigation Report notes that there were drops of water or other liquid on the floor after plaintiff fell (LOD Investigation Report). The LOD Investigation Report also notes that that the liquid on the ground dried up "very quick[ly]" (LOD Investigation Report).

         Ms. Melendez testified at her deposition that she had been walking with plaintiff immediately prior to the incident and that plaintiff had been holding Ms. Melendez's arm for support as a result of plaintiff's recent knee surgery (Deposition of Arlene Melendez, dated Mar. 1, 2016 at 12 ("Melendez Dep."), annexed as Ex. J to Crowley Decl.). Ms. Melendez did not notice anything on the floor prior to plaintiff's fall (Melendez Dep. at 13-14). Following plaintiff's fall, Ms. Melendez noticed that plaintiff's pants were wet and that there was a puddle of clear liquid approximately two feet wide on the floor (Melendez Dep. at 13-14). Ms. Melendez testified that she did not know where the liquid came from or how long it had been on the floor prior to plaintiff's fall (Melendez Dep. at 14-15).

         Ms. Melara testified that she arrived at the scene of plaintiff's fall after hearing Ms. Melendez call out that plaintiff had fallen (Deposition of Indira Melara, dated Oct. 10, 2016 ("Melara Dep.") at 12, annexed as Ex. M to Crowley Decl.). Ms. Melara testified that the liquid on the floor where plaintiff fell was colorless (Melara Dep. at 25). Ms. Melara did not notice any liquid on the floor in the incident area prior to plaintiff's fall and did not know the source of the water or how long it had been there (Melara Dep. at 13-14, 17) .

         Ms. Tamisha McCrae, an acquaintance of plaintiff, was also shopping at the subject Target store on the evening of July 4, 2014 and saw plaintiff and Ms. Melendez shortly after entering the store (Deposition of Tamisha McCrae, dated Oct. 10, 2016 (McCrae Dep.) at 6-7, 8-10, annexed as Ex. L to Crowley Dep.). Ms. McCrae later observed plaintiff lying on the floor and learned that she had fallen (McCrae Dep. at 10-12). Ms. McCrae did not see plaintiff fall and did not know what caused plaintiff to fall (McCrae Dep. at 11-12). At some point prior to plaintiff's accident, Ms. McCrae had passed through the area where plaintiff fell and had not noticed any water or any other debris on the floor (McCrae Dep. at 12-13).

         Plaintiff testified that following her fall at the Target store, she experienced pain and swelling in her knees and sought medical treatment (Rivera Dep. at 34-45). Plaintiff also testified that she had pain in her lower back but that she did not seek medical treatment for that condition (Rivera Dep. at 46) .

         Ill. Analysis

         A. Applicable Legal Principles

         1. Summary ...


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