United States District Court, S.D. New York
OPINION AND ORDER
PITMAN United States Magistrate Judge
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).
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.
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) .
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) .
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).
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).
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) .
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).
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
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) .
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).
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) .
Applicable Legal Principles