Nussbaum v. Railroad, No. 12–cv–00367 (NSR).

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: NELSON S. ROMÁN
• Citation: 994 F.Supp.2d 483
• Parties: Elizabeth NUSSBAUM, Plaintiff, v. METRO–NORTH COMMUTER RAILROAD, and Metropolitan Transportation Authority, Defendants.
• Docket Number: No. 12–cv–00367 (NSR).
• Decision Date: 21 January 2014

994 F.Supp.2d 483

Elizabeth NUSSBAUM, Plaintiff,
v.
METRO–NORTH COMMUTER RAILROAD, and Metropolitan Transportation Authority, Defendants.

No. 12–cv–00367 (NSR).

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

Jan. 21, 2014.

[994 F.Supp.2d 485]

Ira Mark Maurer, The Maurer Law Firm PLLC, Fishkill, NY, for Plaintiff.

[994 F.Supp.2d 486]

Andrew Patrick Keaveney, Philip Joseph DiBerardino, Jr., Landman Corsi Ballain & Ford PC, New York, NY, for Defendants.

OPINION AND ORDER
NELSON S. ROMÁN, District Judge.

Elizabeth Nussbaum (“Plaintiff”) commenced this action on January 17, 2012 against Metro–North Commuter Railroad (“Metro–North”) and the Metropolitan Transportation Authority (“MTA”) (collectively, “Defendants”). Plaintiff alleges that Defendants' negligence caused her to slip and fall inside a Metro–North train car at Cold Spring station on August 16, 2011. Before the Court is Defendants' Motion for Summary Judgment wherein Defendants argue that Metro–North did not have actual or constructive notice of any unsafe or dangerous condition on the train and that as a matter of law, MTA is not a proper defendant in this action. For the following reasons, Defendants' Motion for Summary Judgment is GRANTED.

Factual Background

Plaintiff Elizabeth Nussbaum was a regular commuter on Metro–North train designated number 836, which departs from Poughkeepsie at approximately 7:00 a.m. and runs to Grand Central Terminal. Nussbaum Dep. 106:3–8; Moran Dep. 6:25–7:15. After leaving Poughkeepsie, the train stops at New Hamburg and Beacon before arriving at Cold Spring station at approximately 7:21 a.m. Moran Dep. 45:5–12. By the time the train arrives at Cold Spring station, it is generally about sixty percent full. 56.1 ¶ 16. On August 16, 2011 at approximately 7:21 a.m., Plaintiff boarded train number 836, car 6442 at Cold Spring station wearing sandals with a rubber sole. Nussbaum Dep. 108:3–8. As she boarded the train, Plaintiff entered the vestibule, took two to three steps to the left into the train car, slipped and fell. 56.1 ¶ 3. Plaintiff hit her head and was injured. Id.

Joe Moran, a Metro–North employee, was the conductor on train 836 on the morning of August 16, 2011. 56.1 ¶ 13. The train was “fresh” when it left Poughkeepsie at approximately 7:00 a.m., meaning that it had been cleaned overnight. 56.1 ¶ 14. On the morning of August 16, 2011, it was overcast and rainy, and due to weather conditions, passengers had tracked water into the train. 56.1 ¶ 15. While the train was still stopped at Cold Spring, another passenger informed Mr. Moran that Plaintiff had fallen. 56.1 ¶ 17. Mr. Moran reported the fall and a standard “Report of Incident” was filed. Keaveney Dec. Ex. E.

Trains leaving from Poughkeepsie undergo a daily layover cleaning where Metro–North employees perform a three-step cleaning process. The Metro–North employees pick up large pieces of garbage, sweep smaller pieces of garbage, and then mop the floors of each train car. Boynas Dep. 9:4–16. The floors of the train care are mopped with a mixture of water and concentrated floor soap, designated as FO2276. FO2276 is manufactured by Fine Organics Corporation. Id at 9:20–10:3. Fine Organics has been supplying Metro–North with FO2276 since before 2006. Goldberg Dep. 12:1–19; Boynas Dep. 37:7–15. FO2276 is a water-based liquid alkaline cleaner that is intended for cleaning interior surfaces of passenger cars. Goldberg Dep. 33:10–14. The recommended concentration of the solution is one part FO2276 to between ten and twenty parts water. Id at 36:15–17. This recommendation is printed on the label affixed to each bottle of FO2276. Affidavit of Ronald J. Parrington Ex. E.

A Metro–North foreman, Edward Boynas, testified that Metro–North employees

[994 F.Supp.2d 487]

use varying amount of water to FO2276 concentration when cleaning the floors due to the fact that there is no standard measuring system. 56.1 ¶ 24, 25; Boynas Dep. 15:1–5. He testified that, based on his observations, the concentration ratio of water to FO2276 used by Metro–North employees could be between 3:1 and 5:1. Boynas Dep. 14:21–15:5; 48:4–49:35. Mr. Boynas also stated that employees would not use a concentration that was more diluted than 5:1. Id. at 49:13–16. The process for cleaning the floors involves Metro–North employees dumping an amount of the water and soap mixture onto the floor, mopping the floor with the solution, and continuing until the entire train car has been mopped. 56.1 ¶ 26; Boynas Dec. 15:19–16:24.

Plaintiff submitted an expert witness report from Ronald J. Parrington, P.E. FASM, president of IMR Test Labs. Maurer Dec. Ex. 13. Mr. Parrington performed a coefficient of friction test on sample railroad car floor tiles to determine the coefficients of friction of the train floor tile when dry, wet, and when introduced with four different concentrations of soap solution. Parrington Affidavit ¶ 7. To conduct the tests, Mr. Parrington used a standard test method for static and kinetic coefficients of friction, known as ASTM D 1894–11. Id. at ¶ 8. The sample tiles that Mr. Parrington used in his test were provided by Metro–North. Id. at ¶ 5. Plaintiff provided Mr. Parrington one of the shoes she was wearing at the time of her fall. Id. Mr. Parrington performed hardness testing and Fourier Transform Infrared analysis on the sole of the shoe and determined a certain material that was representative of the rubber on the sole of Plaintiff's shoe. Id. at ¶ 6. The coefficient of friction tests were then performed with this material. Id. Mr. Parrington used strips of the test flooring to test six different surfaces: dry, wet with no soap solution, wet with a solution of three parts water to one part FO2276 (3:1 solution), wet with 5:1 solution, wet with 10:1 solution, and wet with 20:1 solution. Id. at ¶ 7. Each floor sample was tested five times. Id. Based on his tests, Mr. Parrington concluded that “compared to water alone, the presence of floor cleaner/detergent residue decreases the static coefficient of friction by 15–24% and decreases the kinetic coefficient of friction by 17–28%” and that such a decrease “would be expected to have a significant contribution to the likelihood of a slip or fall.” Id. at ¶ 12.

Discussion I. Summary Judgment
a. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. The Rule states, in pertinent part, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party must initially point to evidence in the record, “including depositions, documents, electronically stored information, affidavits or declarations, .... or other materials,” Fed.R.Civ.P. 56(c)(1)(A), “which it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may also support an assertion that there is no genuine dispute by “showing ... that [the] adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the burden shifts to the nonmoving party to raise the existence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1)(A);

[994 F.Supp.2d 488]

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000).

“An issue of fact is ‘material’ for these purposes if it ‘might affect the outcome of the suit under the governing law[,]’ ” Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir.2000) (internal citation omitted), and a genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; accord Benn v. Kissane, 510 Fed.Appx. 34, 36 (2d Cir.2013); Gen. Star Nat'l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir.2009); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008). Courts must “constru[e] the evidence in the light most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir.2010) (quoting Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.2005)). In reviewing the record, “the judge's function is not himself to weigh the evidence and determine the truth of the matter,” nor is it to determine a witness's credibility. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; see also Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir.2010) (“The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact.”). Rather, “the inquiry performed is the threshold inquiry of determining whether there is the need for a trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Summary judgment should be granted when a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.1999); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.2010) (nonmoving party “may not rely on conclusory allegations or unsubstantiated speculation” (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998))). “If the evidence presented by the non-moving party is merely...