Wongsing v. Wal-Mart Real Estate Bus. Tr.

• Decision Date: 15 November 2021
• Docket Number: 20 Civ. 06029
• Parties: LAURA WONGSING, Plaintiff, v. WAL-MART REAL ESTATE BUSINESS TRUST, WAL-MART STORES EAST, LP, WALMART INC. and WALMART SUPERCENTER STORE #2104, Defendants.
• Court: U.S. District Court — Southern District of New York

LAURA WONGSING, Plaintiff,
v.
WAL-MART REAL ESTATE BUSINESS TRUST, WAL-MART STORES EAST, LP, WALMART INC. and WALMART SUPERCENTER STORE #2104, Defendants.

No. 20 Civ. 06029

United States District Court, S.D. New York

November 15, 2021

OPINION & ORDER

JUDITH C. MCCARTHY, UNITED STATES MAGISTRATE JUDGE.

Laura Wongsing (“Plaintiff”) commenced this action against Wal-Mart^[1] Real Estate Business Trust, Wal-Mart Stores East LP, Wal-Mart Inc., and Wal-Mart Supercenter Store #2104 (“Defendants”) to recover for personal injuries allegedly sustained as a result of a fall at WalMart Supercenter Store #2104 (the “Wal-Mart Store”) in Newburgh, New York on August 27, 2019. (Docket No. 4-1). Plaintiff filed her complaint on March 16, 2020 (the “Complaint”), in the Supreme Court of the State of New York, County of Orange. (Id.). On August 3, 2020, Defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. (Docket No. 4). Before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (the “Motion”).^[2] (Docket No. 17; see also Docket Nos. 18, 19). Plaintiff opposed the Motion on May 24, 2021, (Docket No. 22; see also Docket Nos. 20, 21), and Defendants replied on June 15, 2021, (Docket No. 25). For the reasons that follow, Defendants' Motion is denied.

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I. BACKGROUND

The following facts are taken from Defendants' Statement of Material Facts on Motion for Summary Judgment submitted pursuant to Local Rule 56.1 of the United States District Courts of the Southern and Eastern Districts of New York, (“Def. 56.1”), (Docket No. 18), Plaintiff's Response to Defendants' Rule 56.1 Statement, (“Pl. 56.1”), (Docket No. 20), the parties' exhibits, ^[3] and the documents submitted by the parties in support of their contentions. The facts 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) (quoting Novella v. Westchester Cty., 661 F.3d 128, 139 (2d Cir. 2011)) (internal quotations omitted). Any disputes of material fact are noted.

On August 27, 2019, Plaintiff visited the Wal-Mart Store with her twelve-year-old son to purchase an action figure. (Def. 56.1 ¶¶ 1-2; Pl. 56.1 ¶¶ 1-3; Docket Nos. 17-4 at 25:13-26:11;^[4]21-1 ¶¶ 4-5, 7). Plaintiff parked her car near the store entrance, a few spaces away from a set of shopping cart corrals between the parking lot and the main doors. (Docket Nos. 17-4 at 27:3-5; 21-1 ¶¶ 4, 7). Plaintiff and her son entered the store shortly after 6:00 p.m., made the purchase, and exited at approximately 6:30 p.m.^[5] (Docket Nos. 17-4 at 25:4-7, 26:13-16; 21-1 ¶¶ 7-8).

After Plaintiff and her son exited the store, they walked towards her car through a several-foot-wide area of the parking lot that was painted with yellow lines, across from the main doors and a roadway. (Docket No. 21-1 ¶ 6; see also Docket No. 17-4 at 32:14-18). The painted

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area was “adjacent” to the shopping cart corrals. (Docket No. 21-1 ¶ 6). As Plaintiff traversed the yellow lines, her left foot struck a raised portion of asphalt or “divot” and she tripped and fell. (Def 56.1 ¶ 3; Pl. 56.1 ¶ 3; Docket No. 17-4 at 32:7-25; 21-1 ¶ 9).

Surveillance footage of the parking lot in front of the Wal-Mart store on the date of the accident depicts Plaintiff falling at 6:33:38 p.m. (See Docket Nos. 17-1 ¶ 6; 17-4 at 96:19-97:8). Plaintiff testified that during the walk back to the car, she was wearing a pocketbook on her shoulder and carrying the receipt from her purchase. (Docket No. 17-4 at 44:11-45:6-13, 95:2097:8). Just before her fall, she “momentarily” “glanc[ed] down at the receipt and . . . ma[de] sure that” she and her son “were okay in the parking lot” so that they could “g[e]t to the car safely.” (Id. at 43:25-44:23, 95:25-97:8). Plaintiff further explained that her foot was caught on the asphalt's uneven surface, which formed a raised “box” surrounding the yellow lines.^[6] (See Docket No. 17-4 at 32:7-25, 86:22-89:6; see also Def 56.1 ¶ 5; Pl. 56.1 ¶ 5). Plaintiff had understood the yellow lines as “advising . . . [that there was] no parking” where they were painted. (See Docket No. 17-4 at 36:19-37:6). Moreover, the “area . . . seemed like it was okay, it had yellow lines on it, ” and “there was nothing to indicate that there was a problem with the parking lot.” (Id. at 32:16-21). Plaintiff landed on both knees, her hands and her right shoulder. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1; Docket No. 17-4 at 33:20-34:9). After the fall, three bystanders approached Plaintiff to ensure that she was alright. (Docket No. 17-4 at 34:13-35:9). Then,

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following a short rest in her car, Plaintiff and her son returned to the store to report the incident.^[7](Id. at 34:13-35:19; Docket No. 21-1 ¶ 11).

Plaintiff submitted an affidavit corroborating the above deposition testimony and adding that before she fell, she “was not in any hurry” and “was looking straight ahead” to assure her son's safety. (Docket No. 21-1 ¶¶ 4-8). Moreover, “[a]s [she] looked down, the parking area looked like it had ‘cut marks' or saw marks in the asphalt” that formed a “box” with sunken asphalt inside of it. (See id. ¶ 8). The affidavit further asserts that this area was “confusing because the yellow painted lines” extended to “the sunken area” yet “were still intact, ” leading observers to “believe the area [wa]s not sunken.” (See id.). Thus, “the momentary distractions and the painted lines lead [sic] [Plaintiff] to the divot.” (Id. ¶ 9; see also id. ¶ 13).

William Mogg (“Mogg”), the assistant store manager of the Wal-Mart Store, took photographs of the area of Plaintiff's fall and completed an incident report.^[8] (Docket No. 21-3 at 7:20-8:4, 18:22-25:6). He testified that he had no prior knowledge of the condition because he typically parked on the other “side of the [store] building, ” so the date of the incident was “the first time [he] had been to that area.” (Id. at 26:3-8). He conceded that “it is not really noticeable to the eye, ” but “[i]f you trip over it you will notice it.” (Id. at 25:19-25). Mogg also testified that he did not know “if there was some construction or some paving that was done” in the area of Plaintiff's fall prior to the incident, and that he “wouldn't know who [would have been] involved” in that process. (Id. at 35:19-36:7). Defendants assert that they are unaware of any prior complaints and/or accidents involving the area of Plaintiff's fall before the incident. (Docket No. 25-2 at 1; see also Docket No. 21-3 at 32:6-9).

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Plaintiff's expert, Kenneth J. Wooley (“Wooley”), examined the accident site on March 23, 2021. (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6). Although Plaintiff was unable to identify the specific height of the raised asphalt where she fell, (Def. 56.1 ¶ 4; Pl. 56.6 ¶ 4; Docket No. 17-4 at 42:1743:6), Wooley submitted an affidavit and report stating that she fell at its northern side, “closest” to the store, which measured 7/8 of an inch, ^[9] (Docket Nos. 17-6 at 7; 21-2 ¶ 5). Wooley opined that the area “ha[d] been cut and patched at a previous time, ” and had “settled in several spots” due to disrepair, causing an “abrupt” and “sharp” “lip or elevation change” that constitutes a tripping hazard. (Docket No. 17-6 at 7; see also Docket No. 21-2 ¶¶ 4, 6).^[10] This elevation change “would have caused the defect to catch or snare [Plaintiff's] left toe and stop her left foot from moving forward, ” propelling her body forward and leading to her fall. (Docket No. 21-2 ¶ 6; see also id. ¶ 9). He further opined that the area where Plaintiff fell is “difficult to discern, ” compounding the tripping hazard, because “[t]he settled” and “non-settled” portions are the same color “and the striping [does] not change[] direction.” (Docket No. 17-6 at 8; see also Docket No. 21-2 ¶ 8). Moreover, “[t]he yellow stripes would attract pedestrians . . . as being safe from vehicular traffic, ” as they “were next to a shopping cart corral” and “directly in front of the large entrance to the store or the prime parking spaces.”^[11] (Docket No. 21-2 ¶ 8).

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Wooley concluded that Defendants “knew or should have known” of this “hazardous tripping condition” because (1) the “box's” lines were “machine-straight, ” and thus, man-made; and (2) photographs of the area from the date of the accident depicted a several-inch-tall weed as well as gravel, grit and dirt in the “box, ” indicating that “the sinking of the asphalt had been in existence for . . . at least . . . weeks.” (See Id. ¶ 7). Wooley also concluded that the hazardous nature of the condition was foreseeable because it “had foreseeably heavy pedestrian traffic” and “neighboring areas” in the parking lot also contained large, intersecting cracks. (See id. ¶ 9). In addition, the 7/8 of an inch height change and disrepair of the area where Plaintiff fell violated the 2015 International Property Maintenance Code of New York, which only permits a 1/4 of an inch height change or 1/2 of an inch height change for bevels or slopes. (Docket No. 17-6 at 8).

II. LEGAL STANDARDS

A. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, the moving party bears the burden of demonstrating that it is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The Court must 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as to a material fact “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is material if it might affect the...