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Watts v. Wal-Mart Stores East, LP

United States District Court, S.D. New York

March 29, 2018

LAURA WATTS, Plaintiff,
v.
WAL-MART STORES EAST, LP, Defendant.

          Courtney J. Campbell, Esq. Sobo & Sobo, LLP Middletown, NY Counsel for Plaintiff.

          Patricia A. O'Connor, Esq. Brody, O'Connor & O'Connor, Esqs. Northport, NY Counsel for Defendant.

          OPINION & ORDER

          KENNETH M. KARAS UNITED STATES DISTRICT JUDGE.

         Plaintiff Laura Watts (“Plaintiff”) brought this Action against Wal-Mart Stores East, LP (“Defendant”) seeking to recover for personal injuries sustained from a fall at one of Defendant's stores. (See Aff. of Patricia A. O'Connor, Esq. (“O'Connor Aff.”) Ex. A (“Compl.”) (Dkt. No. 20).) Before the Court is Defendant's Motion for Summary Judgment. (See Dkt. No. 19.) For the following reasons, the Motion is granted.

         I. Background

         A. Factual Background

         The following facts are taken from the Defendant's Statement of Material Facts submitted pursuant to Local Civil Rule 56.1, (Def.'s Rule 56.1 Statement (“Def.'s 56.1”) (Dkt. No. 21)), Plaintiff's Response to Defendant's 56.1 Statement (Pl.'s Response to Def.'s Rule 56.1 Statement (“Pl.'s 56.1 Resp.”) (Dkt. No. 25)), and Defendant's Reply to Plaintiff's Response (Def.'s Reply Statement (“Def.'s 56.1 Reply”) (Dkt. No. 27)), and are recounted “in the light most favorable to” Plaintiff, the non-movant. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal quotation marks omitted). The facts as described below are not in dispute, except where indicated.

         On May 3, 2015, Plaintiff was shopping at Middletown Wal-Mart Supercenter, Store #1959. (Def.'s 56.1 ¶¶ 1 & n.1, 6; Compl. ¶ 33.) Plaintiff alleges she suffered personal injuries from a fall in the rear portion of the store near the soda aisle as the result of a dangerous and/or defective condition. (Def.'s 56.1 ¶ 2; Compl. ¶¶ 32, 33. 35.)

         Video footage from the store beginning at 9:23:54 a.m. shows various Wal-Mart employees in the vicinity of the accident scene in the hour before Plaintiff's fall. (Def.'s 56.1 ¶¶ 28, 30; Pl.'s 56.1 Resp. ¶¶ 30-31; O'Connor Aff. Ex H (“Video”).)[1] A Wal-Mart employee appears in the area of the fall at 10:12:56 a.m. (Def.'s 56.1 ¶ 30; Video.) Employees can also be observed in the general area at 9:27:26 a.m. and 9:28:07 a.m. exiting a door to the employee “backroom;” at 9:30:15 a.m. walking down the aisle with a stocking cart; at 9:33:13 a.m. walking down the aisle with a ladder; at 9:38:08 a.m. and 9:39:35 a.m. exiting the employee backroom; at 9:41:48 a.m. walking down the aisle with a stocking cart; at 9:44:11 a.m., 9:46:51 a.m., 9:54:23 a.m., and 9:56:44 a.m. walking down the aisle; at 10:00:57 a.m. and 10:03:29 a.m. walking down the aisle with a stocking cart; and at 10:07:33 a.m. exiting the backroom. (Pl.'s 56.1 Resp. ¶ 30; Video.)[2] At 10:13:37 a.m., an individual is observed in the area of the fall. (Def.'s 56.1 ¶ 31.) The Parties dispute whether this individual is a Wal-Mart employee. Defendant notes that the employee is not wearing a Wal-Mart shirt. (Def.'s 56.1 ¶ 31.) Plaintiff notes that the individual is seen entering the backroom at 10:13:43 a.m., and thus is an employee. (Pl.'s 56.1 Resp. ¶ 31.)[3] At 10:22:05 a.m., a Wal-Mart employee is observed walking down the aisle, and a customer shopping cart is over the “area” of Plaintiff's fall during that time. (Def.'s 56.1 ¶ 32; Pl.'s 56.1 Resp. ¶ 32.)[4] At 10:22:40 a.m., the shopping cart is removed from the area. (Def.'s 56.1 Reply ¶ 33; Pl.'s 56.1 Resp. ¶ 33.)

         Plaintiff entered the store and got a shopping cart, with the intention of getting eggs, butter, and Pepsi. (Def.'s 56.1 ¶¶ 7-8; O'Connor Aff. Ex. D (“Pl.'s Dep.”) 9.) Plaintiff testified that she walked to the back of the store, where the soda aisle was, left her shopping cart by the dairy aisle, and walked down the soda aisle. (Def.'s 56.1 ¶¶ 9-10; Pl.'s Dep. 11.) At 10:23:22 a.m., video footage shows Plaintiff walking through the area of her later accident. (Def.'s 56.1 ¶ 34; Video) Plaintiff did not observe any foreign substance on the floor as she walked from where she left her shopping cart to the entrance of the soda aisle. (Def.'s 56.1 ¶ 11; Pl.'s Dep. 15.) Once in the soda aisle, Plaintiff selected two 2-liter Pepsi bottles. (Def.'s 56.1 ¶ 12; Pl.'s Dep. 12.) Plaintiff carried one bottle of Pepsi in one hand, and in her other hand, she carried the second bottle, her wallet, and her keys. (Def.'s 56.1 ¶ 13; Pl.'s Dep. 12-13.) Plaintiff walked out of the soda aisle, and both of her feet allegedly slipped on liquid on the floor. (Def.'s 56.1 ¶¶ 14-15; Pl.'s Dep. 13, 15.) At 10:23:52 a.m., video footage shows Plaintiff's slip and fall. (Def.'s 56.1 ¶ 38; Video.)

         Plaintiff did not notice the substance before she fell, but testified something “yellow or pink” caused her to fall, and “it was pinkish with some wet was on the floor and I didn't notice it.” (Def.'s 56.1 ¶ 16; Pl.'s Dep. 15.) Plaintiff identified the substance as “something liquid, ” but did not “know what it was.” (Def.'s 56.1 ¶ 16; Pl.'s Dep. 15.) When asked whether the substance was “thin like water, [or] thicker like detergent, ” Plaintiff responded that “[i]t looked more like detergent, ” and responded “[y]es” when asked whether it was “[k]ind of like a liquid soap.” (Pl.'s Dep. 16.) When asked about the size of the substance, Plaintiff described it as “[a] little round little thing, ” more specifically “[a] circle, ” “similar to a base of a coffee mug” but the substance “was drops. That's why [Plaintiff] didn't notice it.” (Def.'s 56.1 ¶ 17; Pl.'s 56.1 Resp. ¶ 17; Pl.'s Dep. 48-49.) The substance got on Plaintiff's clothing, and Plaintiff described her clothes as “wet but not that wet, ” not “soaking wet.” (Pl.'s 56.1 Resp. ¶ 19; Pl.'s Dep. 49.) When Plaintiff touched it, she felt “the wet sensation. It was kind of sticky.” (Pl.'s 56.1 Resp. ¶ 17; Pl.'s Dep. 50.) Plaintiff does not know how the substance came to exist on the floor or how long it was on the floor for. (Def.'s 56.1 ¶ 17; Pl.'s Dep. 48.)

         After Plaintiff fell, she remained on the floor for five minutes, (Def.'s 56.1 ¶ 18; Pl.'s Dep. 17), and was helped up by another customer, (Def.'s 56.1 ¶ 19; Pl.'s Dep. 17). The customer asked Plaintiff “what happened, ” and Plaintiff replied “I slipped and fell on the pink stuff on the floor.” (Pl.'s 56.1 Resp. ¶ 19; Pl.'s Dep. 20.) Plaintiff “gestured” to where she fell. (Pl.'s 56.1 Resp. ¶ 19; Pl.'s Dep. 20-21.) The customer “indicate[d] to [Plaintiff] affirmatively ‘oh, yes, I see that liquid.'” (Pl.'s 56.1 Resp. ¶ 19; Pl.'s Dep. 21.) Video footage also shows Plaintiff point out the area of her fall to a passerby at 11:24:57 a.m. (Video.)

         Plaintiff left the store without advising any Wal-Mart employees of her fall. (Def.'s 56.1 ¶ 20; Pl.'s Dep. 19, 21.) Plaintiff returned to the store later that evening to report the accident, where she spoke with Gallaher. (Def.'s 56.1 ¶¶ 21-22; Pl.'s Dep. 52.)

         Gallaher testified that he had no independent recollection of speaking with Plaintiff on the day of the accident, but he recalled a claim for a fall on a “pink substance, ” because he “ha[d] never written anything up that said pink substance.” (Def.'s 56.1 ¶¶ 23-24; Pl.'s 56.1 Resp. ¶ 24; O'Connor Aff. Ex. E (“Gallaher Dep.”) 21.) Gallaher also testified as to store procedures for foreign substances on the floor. (Pl.'s 56.1 Resp. ¶ 22; Gallaher Dep. 12, 14-16.) Specifically, Gallaher testified that “[w]e guard any kind of spill. If we can't wipe it up ourselves-the associates have pocket pads that they use to wipe up spills. . . . If they can't, they guard the spill until somebody comes over and helps them, whether maintenance or someone else, to clean it up.” (Pl.'s 56.1 Resp. ¶ 22; Gallaher Dep. 12). Gallaher advised the employees he supervised to “always be diligent when you're walking around, ” (Pl.'s 56.1 Resp. ¶ 22; Gallaher Dep. 14), and to “keep their eyes open as they are walking the floor” (Pl.'s 56.1 Resp. ¶ 22; Gallaher Dep. 15). Employees were instructed never to “walk by something; if there is a piece of paper on the ground, pick it up, don't walk by it.” (Pl.'s 56.1 Resp. ¶ 22; Gallaher Dep. 16).

         B. Procedural History

         Plaintiff commenced the instant action in the Supreme Court of the State of New York, County of Orange, on April 28, 2016. (See Notice of Removal 1, 4 (Dkt. No. 1.) Defendant removed the case based on diversity of citizenship to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. (Notice of Removal 3). On February 8, 2017, following completion of discovery, Defendant requested leave from the Court to file the instant Summary Judgment Motion. (Dkt. No. 13.) On February 16, 2017, Plaintiffs filed a letter opposing the request. (Dkt. No. 14.) The Court held a pre-motion conference, (Dkt. No. 15), and issued a briefing schedule, (Dkt. No. 18).

         Pursuant to the scheduling order, Defendant filed the instant Summary Judgment Motion, (Dkt. No. 19), along with a supporting Memorandum of Law, Rule 56.1 Statement, and supporting Affidavit on April 28, 2017. (Def.'s Mem. of Law in Supp. of Mot. For Summ. J. (“Def.'s Mem.”) (Dkt. No. 22); O'Connor Aff.; Def.'s 56.1.) On June 5, 2017, Plaintiff filed a Memorandum of Law in Opposition, along with a Rule 56.1 Response Statement and a supporting Affidavit. (Pl.'s. Mem. of Law. Opp'n to Mot. for Summ. J. (“Def.'s Mem.”) (Dkt. No. 26); Pl.'s 56.1 Resp.; Aff. Of Courtney Campbell, Esq., (“Campbell Aff.”) (Dkt. No. 24).) On June 12, 2017, Defendant filed a Reply Memorandum of Law and Reply to Plaintiff's Rule 56.1 Response Statement. (Def.'s Reply Mem. of Law. in Further Supp. of Mot. for Summ. J. (“Def.'s Reply Mem.”) (Dkt. No. 28); Def.'s Reply 56.1.)

         II. ...


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