United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
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.
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.
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.
Testimony Regarding Plaintiffs Fall
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)
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).)
testified that, following her fall, a female employee of the
store "came running up to [her] and asked if she was
alright." (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 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.)
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.
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.)
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
• 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,  walks away
quickly (id 11:37:58), while at least other one employee
remains with the individual on the floor (id.
• 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.)
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.)
Testimony Regarding Store Procedures
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.
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.)
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.)
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 ...