Kirbaran v. Target Corporation ( 2024 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UMA KIRBARAN, Plaintiff, MEMORANDUM OPINION & ORDER - against - 21 Civ. 8543 (PGG) TARGET CORPORATION, Defendant. PAUL G. GARDEPHE, U.S.D.J.: In this diversity action, Plaintiff Uma Kirbaran alleges that she slipped and fell in a Target store in the Bronx, and brings a negligence claim against the store’s operator, Defendant Target Corporation (“Target”). (Notice of Removal, Ex. A (Cmplt.) (Dkt. No. 3-1)) Target has moved for summary judgment, arguing that there is no evidence that it created a dangerous condition or that it had actual or constructive notice of a dangerous condition. (Def. Br. (Dkt. No. 36) at 6)! For the reasons stated below, Defendant’s motion for summary judgment will be granted. BACKGROUND L FACTS” On May 25, 2021, at about 4:00 p.m., Plaintiff Kirbaran and her niece Celeste Chandler were shopping for a toy at the Target store located at 815 East Hutchinson River 1 The page numbers of documents referenced in this order correspond to the page numbers designated by this District’s Electronic Case Files (“ECF”) system. 2 To the extent that this Court relies on facts drawn from a party’s Local Rule 56.1 statement, it has done so because the opposing party has either not disputed those facts or has not done so Parkway, Bronx, New York (the “Store”). (Def. R. 56.1 Reply Stmt. (Dkt. No. 39) Ff 1, 3; Jean- Jacques Decl., Ex. B (Kirbaran Dep.) (Dkt. No. 43-3) at 35:8-22, 36:18-25; Cmplt. (Dkt. No. 3- 1) § 3) A dispenser containing sanitizing wipes was located at the “front of the store,” along with a trash can. The wipes were intended for use in sanitizing shopping carts. (Def. R. 56.1 Reply Stmt. (Dkt. No. 39) {§ 5-6; Kirbaran Dep. (Dkt. No. 43-3) at 40: 19-42:18) The parties dispute how wet the disinfectant wipes are when dispensed, and how long it takes for the wipes to dry out. Chandler — who visits the Store twice a month — asserts that the wipes are “wet and soaked” “[w]hen dispensed,” and “would [] remain wet . . . sometimes even after |] an hour.” (Jean-Jacques Decl., Ex. D (Chandler Aff.) (Dkt. No. 43-5) § 4, 6, 8-10) Defendant Target contends that the wipes “[w]hen dispensed . .. were moist [and] not soaking wet,” and that “ly}pon wiping down the cart, the wipes immediately became dry.” (Acevedo Aff. (Dkt. No. 39- 2) 9-10) After Kirbaran and Chandler entered the Store, they “walked straight towards the back of the store,” through the women’s department, and into the toy department. (Pltf. R. 5 6.1 Reply Stmt. (Dkt. No. 42) J§ 17-20; Kirbaran Dep. (Dkt. No. 43-3) at 49:18-54:7) While walking in the toy department, Kirbaran “passed a female Target employee . .. stocking [the] shelves.” (Pltf. R. 56.1 Reply Stmt. (Dkt. No. 42) at 13; Kirbaran Dep. (Dkt. No. 43-3) at 53:21- with citations to admissible evidence. See Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party . . . fails to controvert a fact so set forth in the moving party’s Rule 56.1 statement, that fact will be deemed admitted.”) (citations omitted). Where Plaintiff disputes Defendant’s characterization of cited evidence, and has presented an evidentiary basis for doing so, this Court relies on Plaintiff's characterization of the evidence. See Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001) (drawing all rational factual inferences in non-movant’s favor in deciding summary judgment motion). Unless otherwise noted, the facts cited by this Court are undisputed. ny 54:1, 55:20-25) Kirbaran “put a few things into [her] shopping cart” and then “left the shopping cart.” (Kirbaran Dep. (Dkt. No. 43-3) at 54:23-55:1) While “walking back to the cart, [Kirbaran’s right foot] slipped on [a sanitizing] wipe” which was on the floor at “the end of the aisle.” (Id. at 54:23-55:4, 55:20-25, 61:16-24; Def. R. 56.1 Reply Stmt. (Dkt. No. 39) 17) She “fell” “forward,” and “landed on [her] knees.” (Kirbaran Dep. (Dkt. No. 43-3) at 61:13-18, 62:5- 9) Neither Kirbaran nor Chandler saw the wipe on the floor before Kirbaran’s fall (id. at 55:4-6; Jean-Jacques Decl., Ex. C (Chandler Dep.) (Dkt. No. 43-4) at 29:6-8), but there were two additional wipes on the floor in the same aisle. (Def. R. 56.1 Reply Stmt. (Dkt. No. 39) Kirbaran and Chandler do not know how long the wipe Kirbaran slipped on had been on the floor, or how the wipe came to be on the floor before the accident. (See Kirbaran Dep. (Dkt. No. 43-3) at 55:15-19; Chandler Dep. (Dkt. No. 43-4) at 29:9-14) Soon after the fall, Chandler took photographs of the area in which Kirbaran had fallen. (Kirbaran Dep. (Dkt. No. 43-3) at 71:17-74:6; Chandler Dep. (Dkt. No. 43-4) at 32:16-33:4; see Jean-Jacques Decl., Ex. F (Dkt. No. 43-7) (photo)) Cynthia Pineda was the first Target employee to respond to the area where Kirbaran had fallen. (Pltf. R. 56.1 Reply Stmt. (Dkt. No. 42) 432) At 7:33 p.m., Pineda completed a Team Member Witness Statement stating “[t]here were [three] cart wipes on the floor.” (Jean-Jacques Decl., Ex. I (Team Member Witness Statement) (Dkt. No. 43-10)) Griselda Acevedo, the “Leader on Duty” and the fourth Target employee on the scene, testified that she observed three disinfectant wipes on the floor “right by [Kirbaran’s] foot.” (Jean- Jacques Decl., Ex. A (Acevedo Dep.) (Dkt. No. 43-2) at 24:11-23; 26:3-6) Acevedo confirmed that the wipes she observed are the same type of wipes Target dispenses at the front of the store. at 24:19-23) After Kirbaran’s fall, Acevedo “cleaned up the area.” (Acevedo Dep. (Dkt. No. 43-2) at 24:24-25:3) When she retrieved the wipes on the floor, “[t]hey were dry [to the touch].” (Acevedo Dep. (Dkt. No. 43-2) at 25:2-6; Def. R. 56.1 Reply Stmt. (Dkt. No. 39) 26) The Store floor was inspected by a Target employee “every hour.” (Def. R. 56.1 Reply Stmt. (Dkt. No. 39) § 14) On the day of the accident, Acevedo inspected the floor between 3:00 p.m. and 4:00 p.m. (Acevedo Dep. (Dkt. No. 43-2) at 11:19-12:11; 15:11-18; Plt. R. 56.1 Reply Stmt. (Dkt. No. 42) §§ 3, 7-8, 13) In an internal investigation report Acevedo prepared, she noted that the “team member most recently though the area prior to the incident” was “Joel.” (Jean-Jacques Decl., Ex. J (Dkt. No. 43-11)) Acevedo could not recall when Joel last inspected the floor, however. (Acevedo Dep. (Dkt. No. 43-2) at 30:9-23) Acevedo testified that when “something ha[s] fallen on the floor [of the Store],” she and her team would “pick it up and discard [it].” (Acevedo Dep. (Dkt. No. 43-2) at 16:8-25) The Store does not a maintain a record of such incidents, however. (Acevedo Dep. (Dkt. No. 43- 2) at 16:16-25; Def. R. 56.1 Reply Stmt. (Dkt. No. 39) §{ 15-16) The Store has a maintenance crew “responsibl[e]” for “maintain[ing] the floors by either sweeping or mopping.” (Jean- Jacques Decl., Ex. E (Pineda Dep.) (Dkt. No. 43-6) at 58:17-59:5; Pltf. R. 56.1 Reply Stmt. (Dkt. No. 42) 95) Asa result of her fall, Kirbaran suffered pain in her right ankle, right knee, neck and back. (Kirbaran Dep. (Dkt. No. 43-3) at 62:7-9; 78:16-22) She was taken by ambulance to Jacobi Medical Center (id, at 78:23-79:1), where she was treated for pain in her knee and neck, and received physical therapy and orthopedic treatment. (Id. at 82:2-83:14, 85:19-88:9, 90:5-13) Kirbaran later had surgery on her ankle. (Id. at 88:10-11) Il. PROCEDURAL HISTORY The Complaint was filed in Supreme Court of the State of New York, Bronx County, on August 16, 2021, and asserts a negligence claim against Defendant Target. (Cmplt. (Dkt. No. 3-1)) In the Complaint, Kirbaran contends that Target “fail[ed| to maintain the [floor] in a proper manner,” and “fail{ed] to warn [her] of the . . . dangerous and hazardous condition.” (Id. 17) On October 18, 2021, Defendant removed the action to this District based on diversity jurisdiction. (Notice of Removal (Dkt. No. 3)) On July 25, 2023, Defendant Target moved for summary judgment. (Mot. (DKt. No. 35)) DISCUSSION I. LEGAL STANDARDS A. Summary Judgment Summary judgment is warranted where the moving party shows that “there is no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Fed. Trade Comm’n v. Moses, 913 F.3d 297, 305 (2d Cir. 2019). “A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant’s favor.” Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). “Where it is clear that no rational finder of fact ‘could find in favor of the nonmoving party because the evidence to support [her] case is so slight,” summary judgment should be granted.” F.D.LC. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994)). In deciding a summary judgment motion, the Court “is not to weigh the evidence,” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 2d Cir. 2004), but is instead to “resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.” Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, a “party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment... . [M]ere conclusory allegations or denials .. . cannot by themselves create a genuine issue of material fact where none would otherwise exist.’” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)) (alteration in the original). “‘Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.” Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)). Allocation of the burden of proof at summary judgment is a matter of procedural law, which — in a diversity case such as this — is governed by federal law. See Gasperini y. Ctr. for Humans, Inc., 518 U.S. 415, 427 (1996) (“[FJederal courts sitting in diversity apply state substantive law and federal procedural law.”) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 91- 92 (1938)); Tingling v. Great Atl. & Pac. Tea Co., No. 02 Civ. 4196 (NRB), 2003 WL 22973452, at *2 (S.D.N.Y. Dec. 17, 2003) (“The issue of what burden a movant for summary judgment bears when the ultimate burden of proof lies with the non-movant is procedural rather than substantive .. . and accordingly is subject to federal rather than state law.”’); Doona v. OneSource Holdings, Inc., 680 F. Supp. 2d 394, 396 (E.D.N.Y. 2010) (“[T]Jhe respective burdens that the parties bear in a summary judgment motion are procedural rather than substantive, and are thus subject to federal rather than state law.””); Casierra v. Target Corp., No. 09-CV-1301 (JG) (MDG), 2010 WL 2793778, at *1 (E.D.N.Y. July 12, 2010) (applying “federal procedural law .. . [in] deciding whether Target is entitled to summary judgment on [plaintiff's negligence] cause of action”) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)). Here — in order to defeat Target’s summary judgment motion — Plaintiff must offer evidence that creates a material issue of fact as to whether Target “created” a “dangerous condition” or “had actual or constructive notice of the condition that caused her fall.” Thomason v. Target Corp., No. 20 Civ. 8982 (JPC), 2022 WL 1137165, at *4 (S.D.N.Y. Apr. 18, 2022); Taylor v. Manheim Remarketing, Inc., 752 F. App’x 94, 95 (2d Cir. 2019) (affirming summary judgment for defendant in a slip-and-fall negligence action brought under New York law where plaintiff had not proffered evidence creating a material issue of fact as to whether “the defendant ‘created a dangerous condition’ or that the defendant ‘had actual or constructive knowledge of the condition’”) (quoting Lemonda v. Sutton, 268 A.D. 2d 383, 394 (Ist Dept. 2000)). B. Negligence “To establish a prima facie case of negligence under New York law,” 3 a plaintiff must demonstrate: ““(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.’” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 286 (2d Cir. 2006) (quoting Solomon ex rel. Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985)). In this case, the “duty” owed is Target’s “common-law responsibility to show due care to customers by ‘maintain[ing] its premises in a reasonably safe condition.’” Borley v. 3 In this diversity action, the parties agree that New York law — the law of the forum state — governs Kirbaran’s negligence claim. See Def. Br. (Dkt. No. 36) at 6 (“New York substantive law provides the elements of plaintiffs negligence cause of action.”); Plitf. Opp. (Dkt. No. 41) at 14 (“It is undisputed that New York substantive law applies.”). United States, 22 F.4th 75, 78 (2d Cir. 2021) (quoting Kellman v. 45 Tiemann Assocs., Inc., 87 N.Y.2d 871, 872 (1995)). In order to show a breach of the duty of care in a “slip-and-fall” case such as this, plaintiff must offer evidence “that a defendant either created the dangerous condition or had actual or constructive notice of the condition and its dangerousness.” Borley, 22 F.4th at 79 (citing Walsh v. Super Value, Inc., 76 A.D. 3d 371, 372 (2d Dept. 2010)). In order to demonstrate “that the defendant created the dangerous condition,” plaintiff must offer evidence of “‘some affirmative act’ on the part of the defendant,” Gonzalez Wal-Mart Stores, Inc., 299 F. Supp. 2d 188, 192 (S.D.N.Y. 2004) (quoting Fink v. Bd. of Educ., 117 A.D. 2d 704, 705 (2nd Dept. 1986)), that is both “‘deliberate and intentional,” Nussbaum v. Metro-N. Commuter R.R., 994 F. Supp. 2d 483, 493 (S.D.N.Y. 2014), aff'd, 603 Fed. App’x 10 (2d Cir. 2015) (quoting Olsen v. K Mart Corp., No. 04-CV-3648 (JIMA), 2005 WL 2989546, at *4 (E.D.N.Y. Nov. 8, 2005)). “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.” Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837- 38 (1986). Where there is no direct evidence of notice, “[c]onstructive notice may be inferred based on the circumstances surrounding the injury and the condition of the premises.” Touri v. Zhagui, No. 06 Civ. 776 (SCR) (JFK), 2010 WL 779335, at *3 (S.D.N.Y. Mar. 5, 2010) (citing Lusenkas v. Axelrod, 183 A.D. 2d 244, 248-49 (1st Dept. 1992)). A defendant’s “general awareness that a dangerous condition may be present,” Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969 (1994), or “<[t]he mere existence of a foreign substance, without more,”” is not legally sufficient to charge a defendant with constructive notice of the particular condition that caused a plaintiff's fall. Pearce vy. Home Depot U.S.A., Inc., No. 14 Civ. 6836 (RWS), 2016 WL 4540832, at *2 (S.D.N.Y. Aug. 30, 2016) (quoting Segretti v. Shorenstein Co., East L.P., 256 A.D. 2d 234 (1st Dept. 1998)). “Rather, a plaintiff must adduce evidence showing a defendant’s constructive notice of the particular dangerous condition that caused the accident.” Gonzalez, 299 F. Supp. 2d at 193 (citing Taylor v. United States, 121 F.3d 86, 80-91 (2d Cir. 1997)). “