MEMORANDUM & ORDER
On April 17, 2012, Plaintiff Jacqueline Lionel commenced this action against Target Corporation a/k/a Target Stores (“Target”), in the Supreme Court of New York, Kings County, alleging a claim of negligence. Defendant removed the proceeding to this Court on October 26, 2012, based on diversity jurisdiction, and now moves for summary judgment. For the reasons set forth below, the Court grants Defendant’s motion for summary judgment.
I. Background
a. July 14, 2010 incident
On July 14, 2010, at approximately 9:15 p.m., Plaintiff entered a Target store at 2201 Nostrand Avenue in Brooklyn, New York. (Def. 56.1 ¶ 1; PI. Opp’n 56.1 ¶ 1.) Customers enter this Target store by way of an escalator, which rises from a street-level entryway to the interior of the Target store, located on the first floor. (Deposition of Colden Jones, annexed to Declaration of Michael Crowley (“Crowley Deck”) as Ex. I, (“Jones Dep.”), 29:7-24.) When customers get off the escalator on the first floor, they can observe the restrooms and the Target Guest Services offices directly in front of them. (Id. at 31:17-32:3.) A Starbucks retail shop and a Target Café with a seating area for dining are located to the right of the escalators, while a corral for shopping carts and the Target merchandise area is located to the left, between two and twenty feet to the left of the top of the escalator. (Id. at 32:4-35:10.) After stepping off the escalator, Plaintiff turned left and walked through a hallway or vestibule toward the shopping cart corral. (Deposition of Jacqueline Lionel, annexed to Crowley Deck as Ex. E (“Lionel Dep.”), 18:25-19:25; Jones Dep. 34:25-35:4.) Plaintiff did not see anyone in the hallway or in the vicinity of the carts when she got off the escalator. (Id. at 21:21-22:25.)
As Plaintiff was walking toward the carts and the merchandise area of the store, she slipped on a lid from a food container. (Def. 56.1 ¶¶4,7; PI. Opp’n 56.1 ¶ 7; Lionel Dep. 27:22-28:8, 30:19-31:7.) Plaintiff did not see the lid before she slipped on it, as she was looking directly ahead to the carts rather than at the floor. (Def. 56.1 ¶ 6; PI. Opp’n 56.1 ¶ 6; Lionel Dep. 87:17-24.) Plaintiff fell to the floor, striking her right knee on the floor and injuring her right knee and ankle.
Plaintiff told the manager that she had slipped on a lid. (Lionel Dep. 39:18-21.) Both Plaintiff and the manager took photographs of the lid. (Id. at 39:12-14.) Plaintiffs photographs do not include the wet paper towels, because she no longer saw them on the floor by the time she took the photographs.
According to Colden Jones, an Executive Manager at the Target store, anytime a guest is injured in the store, the leader on duty (“LOD”) generates a Guest Incident Report by interviewing the injured guest, and completes a LOD Investigation Report. (Jones Dep. 46:10-50:13.) Sheldon Thomas, the Target manager, completed a written Guest Incident Report which Plaintiff signed without reading. (Lionel Dep. 40:19-41:9; Guest Incident Report dated July 14, 2010, annexed to Crowley Decl. as Ex. D (“Guest Incident Report”), 1.) The Guest Incident Report states that the cause of the accident was “unknown,” that the floor was clean and dry, and that there was no object involved. (Guest Incident Report at 1.) An unsigned LOD Investigation Report, states that the floor was clean and dry at the time of the incident, that this was determined through “[a] visual look,” and that the “source of the substance or condition” could not be determined.
b. Plaintiffs medical treatment
Plaintiff was taken by ambulance to Iri-terfaith Hospital. (Lionel Dep. 44:25, 49:18.) Xrays were taken of Plaintiffs knee and Plaintiff was given prescription painkillers. (Lionel Dep. 51:5, 52:14.) Plaintiff was referred to Kings County Hospital’s orthopedic clinic where she received physical therapy. (Id. at 59:13-17, 60:11-19.) At some time in 2012, Plaintiff visited Bay Ridge Orthopedies and was informed that she needed surgery on her right ankle (due to nerve damage) and on her right knee. (Id. 73:2-3, 75:8-9, 76:2-3,
II. Discussion
a. Standard of Review
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, “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 Bronzini v. Classic Sec., L.L.C.,
b. Plaintiffs negligence claim
Defendant argues that there is no evidence in the record indicating that Target had either actual or constructive notice that the lid was on the floor prior to Plaintiffs fall. (Def. Mem. 8.) Plaintiff asserts that there is sufficient circumstantial evidence from which a reasonable jury could conclude either that Defendant created the dangerous condition and therefore had actual notice of it, or that Defendant had constructive notice of the condition. (PL Opp’n Mem. 7-9.)
To establish a prima facie case of negligence under New York law,
i. Creation of the condition and actual notice
Plaintiff argues that there is sufficient circumstantial evidence in the record to permit a reasonable jury to conclude that Defendant affirmatively created the dangerous condition and therefore had actual notice of it.
Plaintiffs burden at this stage of the proceedings is not merely to proffer a plausible theory, but to present evidence from which a reasonable jury could draw the inference that Defendant created the hazardous condition. See Tenay v. Culinary Teachers Ass’n of Hyde Park,
Plaintiffs argument is premised on the conclusion that the presence of the wet paper towels on the floor near the food container lid indicates that a food spill had occurred in the area, and that the paper towel was used to clean up the spill.
To the extent that Plaintiffs theory relies simultaneously on the diligence of a Target employee observing the spill and cleaning up the spill, as well as the negligence of the same employee in leaving the spill only partially cleaned, it is internally inconsistent, and relies on an unsupportable inference that only a Target employee, rather than a customer or another individual, could have cleaned the spill but not completed the clean-up. Plaintiffs theory, while plausible, is not supported by any evidence and thus speculative and insufficient to defeat summary judgment. See Janetos v. Home Depot U.S.A., Inc., No. 09-CV-1025,
ii. Constructive notice
Plaintiff also argues that the lid on which she slipped was on the floor for a sufficient length of time prior to the accident and that Defendant therefore had constructive notice of it. “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.” Antonelli v. Wal-Mart Stores, Inc.,
1. Visible and apparent
Defendant argues that Plaintiffs testimony that she did not notice the lid on the floor prior to the incident “calls into question whether the lid was visible and apparent.” (Def. Mem. 10.) The photographs submitted by the parties, although of poor quality, show an opaque object on the floor that appears to be between 3 and 5 inches in diameter. (See Crowley Decl. Exs. FG.) In addition, Plaintiff observed the lid subsequent to her fall. (Lionel Dep. 30:5-31:7.) This is sufficient to establish that the object was “visible and apparent.” See Castellanos,
2. Sufficient length of time
Defendant argues that there is no evidence establishing how long the lid was on the floor prior to Plaintiffs fall, and that “it is possible that another guest dropped the lid on the floor a short time prior to Plaintiffs fall.” (Def. Mem. 10.) Plaintiff argues that there is sufficient evidence to establish that Defendant’s employees were in the immediate vicinity of the dangerous condition prior to the accident and could have easily noticed and removed the lid. (PI. Opp’n Mem. 11.) Plaintiff cites to the fact that the accident “took place in an area that is regularly traversed by Target employees,” and that the accident “occurred directly in front of Target’s Guest Services office, and in the area of the food court.” (Id.) Plaintiff relies on case law establishing that, where the public is invited onto the premises, the owner or operator of the premises incurs a “heightened duty” to guard against potential hazards. (Pl. Opp’n Mem. 13 (citing Kelsey v. Port Auth. of New York & New Jersey,
In this case, there is no dispute that, as the operator of a public facility, Target had and was aware of a heightened duty to inspect for and eliminate potential hazards to the public on its premises. (See Jones Dep. 82:7-85:3.) However, Plaintiffs evidence is insufficient to establish the reasonable inference that Defendant breached this duty, since there is no evi
Accepting as true Plaintiffs assertion that Target employees “regularly” traverse the floors throughout the store, this fact is insufficient to establish that the food lid had been on the floor long enough that it was seen or should have been seen by an employee in the course or his or her “regular” rounds. Plaintiff argues that circumstantial evidence establishes that there was a food spill that had been on the floor long enough that Target should have become aware of the hazard. According to Plaintiff, the time frame can be established based on the fact that Plaintiff did not see the spill take place, and that the incident report stated that the floor was “clean and dry,” leading to the conclusion that a spill had taken place and had been negligently cleaned up sufficiently prior to the time that Plaintiff arrived to permit the floor to have dried. (PI. Opp’n Mem. at 12 (“The time it would have taken to retrieve a paper towel, clean the floor and, the process of the floor drying establishes a period of time of constructive notice.”).) Defendant argues that, in light of the fact that the cart corral was close to the top of the escalator, any customer could have walked through the area, dropped the lid, and continued' into the merchandise area and out of Plaintiffs sight when she stepped off the escalator, in a matter of seconds. (Def. Reply 8.)
The cases relied on by Plaintiff, Kelsey and Restey, were both decided' based on evidence in the record establishing the time frame of how long the hazard had been present. In Kelsey, the court found that the defendant was on constructive notice of a hazard on a set of stairs, where the plaintiff testified that she had seen “cigarette butts, paper cups and'wetness on two steps of the stairway” 15 to 20 minutes before she slipped and fell on the same stairway, and “[a] building attendant was present at the scene just prior to the accident.” Kelsey,
Plaintiffs argument that she fell in an area ■ that was “regularly traversed” by Defendant’s employees and in the vicinity of the Guest Services offices is insufficient to defeat summary judgment, absent some evidence that the lid was on the floor long enough that an employee should. have walked through the area and observed it. See Strowman v. Great Atl. & Pac. Tea Co., Inc.,
In sum, there is insufficient evidence in the record from which a reasonable jury
III. Conclusion
For the foregoing reasons, the Court grants Defendant’s motion for summary judgment. The Clerk of Court is directed to close this case.
SO ORDERED.
Notes
. The photographs taken by the Target manager and submitted by Defendant are of a low-quality and the Court can only identify the lower portion of some shopping carts. (See Crowley Decl. Ex. G.)
. The LOD Investigation Report also includes a section titled “Team Member Witnesses” seeking information from the author of the report about the team leader responsible for the area, the names of team members "either assigned to or performing duties in th[e] department or adjacent departments,” and whether a team member(s) was the first to respond, (undated LOD Investigation Report, annexed to Crowley Deck as Ex. H (“LOD Report”) 1.) No information was included in this section and a hand-written “X” was placed over the section. (Id.) Jones testified that the LOD Investigation Report is prepared in the ordinary course of business, (Jones Dep. 47:17-20), and counsel for Defendant conceded as much, (see Jones Dep. 48:3-5). Based on his experience as a leader on duty, Jones had completed LOD Investigation Reports, and was familiar with Target's general procedure for completing this report, but had not completed the report regarding this incident. (Jones Dep. 46:10-25, 49:15-50:13.) According to Jones, the meaning of the "X" through this section was both that "there were no witnesses,” and "[tjhey had no Team Members in that area.” (Id. at 55:9-22; 67:2-10.)
. Because this is a diversity case, the Court applies New York substantive law. See Erie R.R. Co. v. Tompkins,
. “Where the defendant created the dangerous condition, actual notice is presumed.” Gayman v. Pathmark Stores, Inc., No. 04-CV-07882,
. Defendant argues that Plaintiff's theory— that the presence of the wet paper towel is conclusive evidence of a spill that was not completely cleaned—lacks any evidentiary support to distinguish it from equally plausible theories, such as, for example, that a customer dropped the paper towel on the floor. (Def. Reply 3.) However, reviewing the evidence in the light most favorable to Plaintiff, a reasonable jury could find that the wet paper towel indicates that someone had attempted to clean up a food spill associated with the lid.