Cooper v. Pathmark Stores, Inc.

• Decision Date: 17 March 1998
• Docket Number: No. 96-CV-2358 (JS).,96-CV-2358 (JS).
• Citation: 998 F.Supp. 218
• Parties: Charles COOPER, Plaintiff, v. PATHMARK STORES, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

998 F.Supp. 218

Charles COOPER, Plaintiff, v. PATHMARK STORES, INC., Defendant.

No. 96-CV-2358 (JS).

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

March 17, 1998.

Donald W. Leo, Law Office of Richard Borda, Coram, NY, for Plaintiff.

Henry M. Primavera, Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, NY, for Defendant.

MEMORANDUM AND ORDER

SEYBERT, District Judge.

Presently pending before the Court is defendant's motion for summary judgment in this diversity jurisdiction "slip and fall" personal injury negligence action. The defendant has established that there are no genuine issues of material fact in dispute and is entitled to judgment as a matter of law, and therefore, defendant's motion for summary judgment is granted.

BACKGROUND

On Saturday, July 8, 1995, at approximately 8:30 P.M., the plaintiff, Charles Cooper was shopping in a supermarket owned and operated by the defendant Pathmark Stores, Inc. ("Pathmark"). The plaintiff entered the store with his currently estranged wife, Zena Littlejohn, but without a plan of intended purchases. They first proceeded down aisle sixteen which contained various and sundry household cleansers and laundry supplies. The plaintiff testified at a deposition that he observed an employee wagon with empty boxes on it in the aisle. There were no store employees near the wagon or in the aisle. He did not observe any puddles or liquid on the floor. At the far end of the aisle he suddenly slipped and landed on the ground striking his back and neck. Ms. Littlejohn immediately notified store personnel of the plaintiff's predicament.

Mr. Jorge Salazar, the evening manager, promptly went to the plaintiff's aid and upon determining that Mr. Cooper desired an ambulance, Salazar went to the courtesy desk and called the Fire Department. Mr. Salazar returned with the store's Polaroid camera and took five photos of the scene. The photos depict the plaintiff lying on the ground, his head in a blue puddle. Alongside the puddle is a toppled plastic Sta-Puff bottle, sans top.

At a deposition, Mr. Salazar described the puddle as an oval shape about one and one half feet in diameter, extending out into the aisle from a point approximately five or six inches beyond the shelving. The top of the overturned bottle was located on the second shelf from the bottom. He further stated that neither the bottle nor the cap appeared to be cracked or broken in any fashion. There were also two displays in the aisle, the closest one situated approximately five feet from the puddle. Mr. Salazar also testified that there were no wagons or empty boxes in the aisle. Mr. Salazar did not know how the plastic bottle ended up on the floor, nor did the two on duty "truck crew" employees he asked. Mr. Salazar indicated that it is likely he had previously been in the aisle within five to thirty minutes of the accident. Further, he observed no footprints or skid marks in the immediate area of the accident.

The plaintiff testified at a deposition that he was not aware of the puddle at the time he slipped, and, obviously, did not know how it came to be present on the floor or how long it was there. The plaintiff also was not aware of any leaking bottles or displays. The plaintiff claims to have initially lost consciousness and was later taken to the hospital via ambulance.

DISCUSSION

I. STANDARDS FOR GRANTING SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of proof is on the moving party to show that there is no genuine issue of material fact, Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994)(citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975)), and "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Id. (citing Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987)). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citing 10A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)).

A party opposing a motion for summary judgment "`may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 248, 106 S.Ct. at 2510 (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). Under the law of the Second Circuit, "when no rational jury could find in favor of the nonmoving party because the evidence is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224 (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988)).

It is within this framework that the Court addresses the present summary judgment motion.

II. A PRIMA FACIE NEGLIGENCE CLAIM

As the alleged negligent acts and the accident occurred in New York, based upon the teachings of lex loci delicti, New York substantive law will govern this diversity action. The defendant claims that summary judgment is appropriate because the plaintiff has failed to establish a prima facie case of negligence. Generally, in a negligence action, a plaintiff must establish that: (1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as a proximate result of the breach. See Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 392, 489 N.E.2d 1294 (1985). As the owner/operator of the supermarket, it is a given that Pathmark had a duty to maintain the store in a reasonably safe condition. See Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 568, 352 N.E.2d 868 (1976).

Specifically, to establish a prima facie case of negligence in a slip and fall action, the plaintiff must demonstrate that the defendant "created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition." Bykofsky v. Waldbaum's Supermarkets, Inc., 210 A.D.2d 280, 619 N.Y.S.2d 760, 761 (2d Dep't 1994). See also Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 494, 646 N.E.2d 795 (1994); Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 647, 492 N.E.2d 774 (1986).

The plaintiff's affirmation in opposition to defendant's motion to summary judgment entirely predicates defendant's liability on having affirmatively created the dangerous condition, Pl. Aff. ¶ 7, and admits that the plaintiff cannot establish that the defendant had either "actual notice" nor "constructive notice" that the spill was on the floor. Pl. Aff. ¶ 16. The plaintiff's theory of the case is that there is sufficient circumstantial evidence that an employee or employees of the defendant spilled a blue liquid in the shopping aisles while he or they were in the process of restocking the shelves, that the blue liquid was slippery and was the proximate cause of the plaintiff's fall, thereby causing him to sustain serious and severe personal injuries. Pl. Aff. ¶ 13. Somewhat surprisingly, the plaintiff has declined to submit a Memorandum of Law in Opposition to Summary Judgment, stating that the case law contained in defendant's Memorandum of Law is not inconsistent with the plaintiff's opposition. Pl. Aff. ¶ 29. Accordingly, the Court will only consider whether there is a genuine issue of material fact as to the issue of the creation of the blue puddle.

III. CREATION OF THE CONDITION

The defendant claims that there is no evidence that its employees actually created the condition which caused the accident or that they had actual knowledge of its existence. The defendant asserts that even assuming arguendo there was an employee wagon or an employee in the immediate vicinity of the accident, it does not raise an inference upon which proof of a created condition can be premised.

The mere fact that a puddle of liquid originated from store merchandise does not establish the creation of the puddle, because, the puddle is not a direct consequence of the defendant's passive activity of providing merchandise for sale. The intervening act of spilling the detergent creates the condition and it is not attributable to the defendant absent either spillage by the defendant or its employees or conduct on the defendant's part which demonstrably increases the risk of creating the condition.

The Court having fully reviewed the parties' submissions and the deposition testimony finds that the evidence does not support an inference that the defendant created the puddle. The only statement advancing such an inference is plaintiff's testimony that he saw an employee wagon with empty boxes on it across the aisle from the area in which he fell. The plaintiff did not see any store employees in the aisle or near the wagon. The plaintiff did not observe any employee spill the blue liquid on the floor. The store manager testified that there were no empty boxes or wagons in the aisle, only two store displays. Furthermore, the manager did not see anything near or around the plaintiff besides the puddle and the plastic bottle.

The factual setting surrounding the incident is inconsistent with an employee created condition. A bottle lying overturned on the floor with the cap removed and placed on the shelf, is not indicative of an employee accident resulting from the improper stocking of...