Ascher v. Target Corp.

• Decision Date: 15 October 2007
• Docket Number: No. 05-CV-4826 (RER).,05-CV-4826 (RER).
• Citation: 522 F.Supp.2d 452
• Parties: Barbara ASCHER, Plaintiff, v. TARGET CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of New York

522 F.Supp.2d 452

Barbara ASCHER, Plaintiff, v. TARGET CORPORATION, Defendant.

No. 05-CV-4826 (RER).

United States District Court, E.D. New York.

October 15, 2007.

Herbert William Fischman, New York, NY, for Plaintiff.

John P. Connors, Jr., David S. Heller, Susan Elizabeth O'Shaughnessy, Connors & Connors, P.C., Staten Island, NY, for Defendant.

OPINION

RAMON E. REYES, JR., United States Magistrate Judge.

Plaintiff Barbara Ascher ("Ascher") brought this action against defendant Target Corporation ("Target") for injuries she allegedly sustained when, while shopping at the Target store located on Gateway Plaza Drive, in Brooklyn, New York (Def.'s Statement of Material Undisputed Facts ("Def.'s 56.1 Stmt.") ¶ 1), a sauté pot fell off a display and onto her right foot.¹ Ascher alleges that Target created or allowed a hazardous condition to exist on its premises, and that it had constructive notice of the unsafe condition that caused her injuries.

Target has moved for summary judgment, arguing that Ascher cannot establish the existence of any dangerous or defective condition and that, even conceding the existence of such a condition, there is no showing of either actual or constructive knowledge. Target also argues that Ascher's expert has submitted a report which fails to create an issue of fact with respect to the alleged dangerous condition because it is based on insufficient data and assumptions of fact contrary to those established in the record.

For the reasons set forth below, Target's motion for summary judgment is granted and plaintiffs complaint is dismissed in its entirety.

BACKGROUND

Ascher claims that she was injured on June 2, 2005 while she was shopping at the Gateway Plaza Drive Target store. (Def.'s 56.1 Stmt. ¶ 1;² Def's Ex. G, Accident Report.) Ascher claims that her injury occurred when a sauté pot fell on her foot and injured her "right big toe" and "second big toe." (Def.'s 56.1 Stmt. ¶ 2; Def.'s Ex. G.) Ascher had not seen the pot before her injury, nor did she know how it came into contact with her toe. (Def.'s 56.1 Stmt. ¶¶ 7, 9.) At the time of the accident, Ascher was in the portion of the store where frying pans were sold. (Def.'s Ex. D, Pl.'s Dep. at 94.) Ascher testified that there was a lectern-like surface beneath the frying pan display but that she did not see any pots or pans on it. (Def.'s 56.1 Stmt. ¶ 10.) Target's representative testified that no materials were ever stored, stocked or displayed on the lectern-like surfaces used to show product literature. (Id. at ¶ 11.) Ascher's expert, Scott Silberman, examined the Guest Incident report and photographs of the scene of the accident and visited the Target store where Ascher's injury occurred. Based upon this information, Silberman opined that a shopper had placed a sauté pot on the lectern-like surface, which was sloped and lacked an edge guard, and that this pot had slid off and struck Ascher's foot. (See Pl.'s Ex. E, Pl.'s Expert's Report at 1-4.)

DISCUSSION

I. Summary Judgment Standard

A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. This can be accomplished by identifying relevant evidence on record such as pleadings, depositions, answers to interrogatories, admissions on file and affidavits. Id. The moving party is not required to support its motions with affidavits or other similar materials negating the opponent's claim. Id.; Dawes v. Pellechia, 688 F.Supp. 842, 844 (E.D.N.Y. 1988).

To overcome a motion for summary judgment, the opposing party must show that there is a genuine issue of material fact in dispute. A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The mere existence of some alleged factual dispute between the parties will not suffice to defeat an otherwise properly supported motion. Id. at 247, 106 S.Ct. 2505; Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d 362, 368 (2d Cir.2003) (citations omitted). An "opposing party's facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor merely suspicions." Contemporary Mission v. United States Postal Serv., 648 F.2d 97, 107 n. 14 (2d Cir.1981) (internal citations and quotation marks omitted).

Evidence of the non-movant is presumed credible and all reasonable inferences are to be drawn in her favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A court is not to undertake credibility judgments or to weigh the evidence. Id. However, the adverse party "may not rest upon the mere allegations or denials of the adverse party's pleadings" but must go beyond the pleadings and "set forth specific facts." FED.R.CIV.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (holding that resolution of any factual issues of controversy in favor of the non-moving party is only prescribed where "the facts specifically averred by that party contradict facts specifically averred by the movant"); Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996) (holding that "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment").

If, after an adequate time for discovery, the opposing party has failed to make a showing of an essential element of its case for which it bears the burden of proof at trial, summary judgment will be granted. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Smith v. Half Hollow Hills Cent. Sch. Dist., 349 F.Supp.2d 521, 524 (E.D.N.Y. 2004).

II. Analysis

In a diversity action such as this one, the court must apply the substantive law of negligence of New York State. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Ortiz v. Rosner, 817 F.Supp. 348, 350 (S.D.N.Y.1993). To establish a prima facie case of negligence under New York law, a plaintiff must prove: (1) that the defendant owed a duty to him or her; (2) that the defendant breached this duty; and (3) that this breach was the proximate cause of the plaintiffs injury. See Williams v. Utica College of Syracuse University, 453 F.3d 112, 116 (2d Cir.2006) (citations omitted).

A. Ascher Has Failed to Establish the Cause of the Accident

Ascher claims that a pot was left on the lectern and fell on her foot. (See Pl.'s Memorandum of Law in Opp'n at 10). Ascher's expert maintains that the pot fell due to Target's negligence in failing to install an edge guard on the "shelf."³ (See Pl.'s Ex. E at 4).

Target contends that Ascher has failed to establish the cause of the accident. The failure to establish the cause of a plaintiffs injury is fatal to a claim of negligence. See Kochiashvili v. Yudenfreund, No. 04-CV-1190 (SLT)(CLP), 2005 WL 3263887, at *2 (E.D.N.Y. Dec. 1, 2005) (granting summary judgment for defendant when plaintiff was unable to show cause of fall from ladder) (citing Christopher v. New York City Transit Authority, 300 A.D.2d 336, 752 N.Y.S.2d 76 (2d Dept.2002)); see also Lau Tung Tsui v. New Charlie Tseng Corp., 35 A.D.3d 390, 825 N.Y.S.2d 276, 277 (2d Dept.2006) (finding that failure to establish cause of fire prevented plaintiff from establishing that defendant caused or created a hazardous condition); Duncan v. Toles, 21 A.D.3d 984, 801 N.Y.S.2d 359, 360 (2d Dept.2005) (summary judgment granted when deposition testimony of the plaintiff established that she did not know what caused her fall).

Although proximate cause can be inferred from circumstances underlying the accident and need not be demonstrated by direct evidence, mere speculation as to the cause of injury is insufficient. See Williams v. KFC Nat. Management Co., 391 F.3d 411, 421(2d Cir.2004); Wurtzel v. Starbucks Coffee Co., 257 F.Supp.2d 520, 526 (E.D.N.Y.2003) (citing Schneider v. Kings Highway Hosp. Center, Inc., 67 N.Y.2d 743, 500 N.Y.S.2d 95, 490 N.E.2d 1221 (N.Y.1986)); Oettinger v. Amerada Hess Corp., 15 A.D.3d 638, 790 N.Y.S.2d 693, 694 (2d Dept.2005) (citations omitted). A plaintiff need not positively exclude other causes but proof must render them sufficiently "remote" or "technical" to enable the jury to reach its verdict based upon logical inferences rather than speculation. See Williams, 391 F.3d at 421; Wurtzel, 257 F.Supp.2d at 527 (citations omitted). A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency. Williams, 391 F.3d at 420; Gayle v. City of New York, 92 N.Y.2d 936, 937, 680 N.Y.S.2d 900, 703 N.E.2d 758 (1998) (citations omitted). However, when an accident is just as likely to be attributed to a factor other than the one alleged by a plaintiff, any determination of the cause of the accident is bound to be predicated on sheer speculation. Wurtzel, 257 F.Supp.2d at 527 (holding that "[i]f the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts") (citations omitted); see also Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 814 N.Y.S.2d 178, 179 (2d Dept.2006) (granting summary judgment when plaintiffs fall was reasonably attributable to factors other than defendant's failure to...