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Johnson v. Wal-Mart Stores East, LP

United States District Court, E.D. New York

January 12, 2018



          NICHOLAS G. GARAUFIS, United States District Judge.

         Plaintiff Mamie Johnson brings this personal injury action based on injuries she allegedly sustained when she slipped and fell in a store owned and operated by Defendant Wal-Mart Stores East, LP. (Ex. A to Not. of Removal ("Compl.") (Dkt. 1 at ECF pp.5-8) 13.) Plaintiff contends that Defendant negligently failed to remove the hazard that allegedly caused her fall, and thus is liable to her in tort.

         Before the court are Defendant's motion for summary judgment and Plaintiffs crossmotion for sanctions for Defendant's alleged spoliation of evidence. (Mot. for Summ. J. ("Summ J. Mot") (Dkt. 26); Mot. for Sanctions ("Sanctions Mot") (Dkt. 30).) For the following reasons, the court GRANTS IN PART and DENIES IN PART Defendant's motion for summary judgment and DENIES Plaintiffs cross-motion for sanctions.

         I. BACKGROUND

         A. Factual History

         The facts in this opinion are drawn, where possible, from the parties' statements of undisputed facts, submitted pursuant to Local Rule 56.1. (Def. R. 56.1 Statement ("Def. 56.1") (Dkt. 28); Pl. R. 56.1 Counterstatement ("Pl. 56.1") (Dkt. 33); PL R. 56.1 Reply ("Pl. 56.1") (Dkt. 32); Def. R. 56.1 Reply ("Def. 56.1 Reply") (Dkt. 38); Def. Response to Pl. 56.1 (Dkt. 39).) See also Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (The court "is not required to consider what the parties fail to point out in their Local Rule 56.1 statements." (internal quotation marks and citations omitted)). This opinion relies only on facts that are truly undisputed in the parties' Rule 56.1 statements, noting any areas of apparent disagreement and citing to the record for additional facts.

         1. Testimony Regarding Plaintiffs Fall

         The events in question occurred on July 6, 2013, in Defendant's store in Spring Hill, Florida. (Def. 56.1 ¶¶ 7-8; 11.) Plaintiff and her son, Lavel Johnson ("Lavel"), entered the store in order to purchase a "tote bag." (Id. ¶ 10.) Plaintiff was directed by a store employee to the back of the store. (Id. ¶¶ 12-13.) As she was walking there, Plaintiff states that she slipped in a puddle of liquid on the floor. (Id. ¶¶ 17, 19 (quoting Ex. E to Summ. J. Mot. ("Pl. Dep. Tr.") (Dkt. 27-5) 44:18-55:10).)

         Plaintiff testified that she did not see the liquid before she slipped and did not know how long it had been on the floor, but that it was "a lot" of liquid. (Pl. Dep. Tr. 49:12-18, 50:2-4, 51:25-52:3.) She further testified that she did not see any containers that could have been the source of the spill on the floor, nor did she see safety cones or other indicators that the floor was wet. (Id. 53:13-24.) Similarly, in a written account made on the day of the fall and an interview conducted two days later with one of Defendant's employees, Plaintiff did not mention that she was aware of the source of the liquid or of any evidence that store employees knew about the liquid or had attempted to clean it up. (Ex. F. to Summ. J. Mot. ("Customer Statement") (Dkt. 27-6); Ex. D. to Summ. J. Mot. ("Pl. Interview Tr.") (Dkt. 27-4).)

         Plaintiff testified that, following her fall, a female employee of the store "came running up to [her] and asked if she was alright."[1] (Pl. Dep. Tr. 57:21-23.) Plaintiff responded that she was unable to get up and had injured her knee, at which point that employee hailed other employees to assist. (Id. 59:6-21.) Plaintiff testified that a second employee[2] came to the scene and attempted "to wipe [] up [the liquid] with some napkins or something." (Id. 59:24-60:25.) During this process and while she was still on the floor, Plaintiff stated that she called Lavel with her cellular phone, at which point he came to her assistance. (Id. 59:17-21, 61:11-15.) After several minutes, store employees brought a wheelchair for Plaintiff, and she was removed from the store and brought to the hospital in an ambulance. (Id. 73:11-24.)

         Plaintiffs son, Lavel, provides a somewhat different account. In his deposition, Lavel testified that he was approximately one aisle away from Plaintiff at the time of the accident, and that he was prompted to come to the scene when he heard Plaintiff "yelling [his] name." (Ex. G to Summ. J. Mot. ("Lavel Dep. Tr.") (Dkt. 27-7) 16:3-8, 17:3-11.) Lavel estimated that he arrived "ten seconds" after Plaintiff fell (Id. 17:16-7), and that no one else was present when he reached Plaintiffs location (id. 20:12-16: see also id. 31:3-8).

         Lavel testified that the liquid on the floor appeared to be urine, and that one of Defendant's employees told him that one of the store's customers had urinated on the floor on other occasions. Id. 21:11 -22:18; see also Id. 22:14-17 ("[Defendant's employee] didn't say they actually witnessed [the customer urinating], he was saying it like, oops it's Saturday, another day of that happening again.").) Lavel testified that, when he arrived at the scene of Plaintiff's accident, he observed paper towels "soaked" in the liquid. (Id. 32:14-18; see also Ex. H to Summ. J. Mot. ("Witness Statement") (Dkt. 27-8).) Lavel stated that the paper towels looked as if "someone was trying to clean [the puddle] up and [] didn't finish" (Lavel Dep. Tr. 20:8-11), though he was unable to say whether the paper towels were placed on the floor before or after Plaintiff fell (id. 39:20-41:15). Lavel also testified that he saw a Walmart employee in the area with a mop to clean up the spill, and that the employee explained that they were "already in the midst of cleaning up that space" at the time of Plaintiffs fall. (1431:16-32:13.)

         2. Video Evidence[3]

         In addition to the deposition testimony regarding the incident, Defendant also produced a video purporting to depict Plaintiffs fall. (Ex. N to Summ. J. Mot. ("Store Video") (Dkt. 43). The court has reviewed the video, which shows the following events:

• At approximately 11:37:25, an individual in a yellow dress falls while walking between the aisles of the store. (Id. 11:37:25.) The cause of the fall is not visible.
• Within approximately ten seconds of the fall, multiple other individuals approach the individual on the floor. (Id. 11:37:35.) One of those individuals, who appears to be an employee of the store, [4] walks away quickly (id 11:37:58), while at least other one employee remains with the individual on the floor (id. 11:37:58-11:38:30).
• Just over a minute after Plaintiffs initial fall, another store employee approaches the individual on the floor holding what appears to be a roll of paper towels. (Id. 11:38:30.) The employee then appears to pull several paper towels off the roll and place them on the ground near the fallen person. (Id. 11:38:35-38.)
• Roughly three minutes after the fall, an individual arrives pushing a cart containing what appear to be mops and other cleaning supplies. (0411:40:27.)
• At 11:41:03, three and a half minutes after the initial fall, an individual wearing a white sleeveless shirt arrives and appears to converse with the fallen person. (Id. 11:41:03.) That person then remains at the site of the accident and eventually removes the fall victim from the area in a wheelchair. (Id. 11:55:48.)

         During Lavel's deposition, counsel for Defendant asked Lavel whether could identify himself as the individual seen in the video wearing a white sleeveless shirt. (Lavel Dep. Tr. 29:5-9.) Lavel responded "[t]hat can be me, but I'm not sure." (Id. 29:10-11.)

         3. Testimony Regarding Store Procedures

         In addition to testifying about the incident itself, several of Defendant's employees discussed the procedures for preventing and addressing hazardous conditions within the store. Veronica Matos, a "salaried member of management" at the store in question, testified that store employees "walk the facility nonstop ... to verify there is nothing dangerous." (Ex. I to Summ. J. Mot. ("Matos Dep. Tr.") (Dkt. 27-9) 9:5-7.) Matos testified that any employee who discovers a liquid spill on the floor must stay with the spill and find another employee to clean the area. (Id. 17:9-18:13.) Both Matos and other employees of the store testified that any liquids founds on the floor are generally cleaned with paper towels. (Id. 27:14-22.)

         Defendant's employees also testified regarding the procedures for addressing slip-and-fall incidents. According to those employees, store employees are directed to first assist the fallen customer and ask whether he or she needs medical assistance. (Id. 22:16-23:10; Ex. L to Summ J. Mot. ("Kokoris Dep. Tr.") (Dkt. 27-12) 8:23-9:7.) Next, employees are directed to clean up the cause of the accident. (Ex. J to Summ. J. Mot. ("Kramlich Dep. Tr.") (Dkt. 27-10) 59:5-15.) Before cleaning the spill, however, Defendant's policy directives call for employees to document the scene, including photographing the area "[p]rior to altering the scene." (Ex. 8 to Sanctions Mot. ("Policy Document") (Dkt. 31-8) at ECF p.90; see also Kramlich Dep. Tr. 59:11-22; Kokoris Dep. Tr. 9:8-10:3.)

         B. Procedural History

         Plaintiff filed this action in the Supreme Court of the State of New York for Kings County on March 18, 2016, and Defendant removed the case to this court on March 23, 2016. (Not. of Removal. (Dkt. 1).) Plaintiff brings a single cause of action for negligence and seeks $1 million in damages for injuries sustained in her fall. (Id.)

         On July 28, 2017, Defendant filed its fully briefed motion for summary judgment. (Summ J. Mot.) On the same day, Plaintiff filed its cross-motion for sanctions against Defendant for its conduct ...

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