Opinion
01-CV-0092E(Sr)
June 5, 2002
MEMORANDUM and ORDER
Plaintiff Lynette J. Gregori ("Gregori") brings this action to recover damages for personal injuries sustained when she allegedly fell on a milk puddle at a store operated by defendant ("Eckerd") at 243 South Main Street, Albion, N.Y. Presently before this Court is Eckerd's motion for summary judgment. For the reasons stated hereinafter, such motion will be denied.
Gregori's husband, Michael, also brings claims against Eckerd for loss of consortium and services. His claims are derivative of his wife's. Unless otherwise indicated, all references to "plaintiff" or "Gregori" are to Lynette.
Gregori was shopping at Eckerd when she slipped on the milk puddle, which was near the last cash register and the service desk. Gregori Dep. at 22-32. Plaintiff, however, did not actually fall because she grabbed onto the coat of an unknown woman. Id. at 32-36. After she slipped, Gregori completed her shopping trip. Id. at 43. Plaintiff did not file an accident report on the day of her accident, but did so after visiting her physician with respect to a back injury that plaintiff alleges resulted from her accident at Eckerd. Id. at 47-53.
Plaintiff did not see the white milk puddle on the white linoleum floor prior to slipping and there was no milk container in the area of the milk puddle. Id. at 33. Plaintiff described the milk puddle as six inches by six inches, but has "no idea" how long the milk puddle had been on the floor. Id. at 34, 36. Gregori did not notice any Eckerd employees in the vicinity of the milk puddle at the time she slipped. Id. at 35. Afterward, Gregori did see a female cashier; although plaintiff cannot describe this cashier in any respect and did not speak with her. Id. at 29, 42-44. Prior to her accident, Gregori never heard any Eckerd employees discuss the milk puddle. Id. at 44. There was, however, a witness to the accident. Aaron Luce, an acquaintance of plaintiff, witnessed the accident as he was walking behind her. Id. at 37-40. In his affidavit dated December 12, 2001, Luce states that a female cashier witnessed the accident and then commented, "the milk's not cleaned up yet? They were supposed to clean it up awhile ago." Luce Aff. at 65. As discussed below, these facts create a genuine issue of material fact as to whether Eckerd had actual notice of the milk puddle.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that she is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). In other words, summary judgment is improper if there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party. Ibid. Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
Turning to the substantive law that governs, a plaintiff in a negligence action must generally establish that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached such duty and that the plaintiff suffered damage as a proximate result of the breach. Solomon v. City of New York, 66 N.Y.2d 1026, 1027 (1985). As the store owner, Eckerd had a duty to maintain its premises in a reasonably safe condition. Basso v. Miller, 40 N.Y.2d 233, 241 (1976). To establish a prima facie case of negligence in a "slip-and-fall" action, a plaintiff must demonstrate either that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of such condition. Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986).
See also Goodwin v. Knolls at Stony Brook Homeowners' Assoc., 674 N.Y.S.2d 411, 412 (2d Dep't 1998) (same).
Although plaintiffs can point to no evidence that Eckerd created such hazard, Luce's testimony concerning the cashier's statement creates a genuine issue of material fact as to whether Eckerd had actual notice of the milk puddle. Defendant argues that Luce's statement is inadmissible hearsay. Defendant cites several state court decisions that have held an employee's statement concerning a hazardous condition inadmissible because it was beyond the employee's scope of authority. When making evidentiary rulings, however, this Court is bound to follow the Federal Rules of Evidence ("FRE") rather than state case law. Accordingly, the cashier's statement is not hearsay because it is not being offered for the truth of the matter asserted. FRE 801(c). To wit, it is not offered to show that the milk was on the floor, it is offered to show that the cashier made the statement — i.e., that Eckerd had notice of a dangerous condition in its store that required maintenance. See Hurley, supra footnote 8, at *3 (denying Marriott Corp.'s motion for summary judgment because it had notice of a patch of ice where its employees had received reports of the defective condition) (citing Torri v. Big V. of Kingston, 537 N.Y.S.2d 629, 631 (3d Dep't 1989)).
Accordingly, the Court need not address the issue of constructive notice.
See e.g., Davis v. Golub Corp., 730 N.Y.S.2d 370 (3d Dep't 2001); Walker v. Golub Corp., 714 N.Y.S.2d 796 (3d Dep't 2000); Tkach v. Golub Corp., 696 N.Y.S.2d 289 (3d Dep't 1999); Loschiavo v. Port Auth., 446 N.Y.S.2d 358 (2d Dep't 1982). These cases do not address whether an employee's statement concerning notice of a hazardous condition constitutes non-hearsay as opposed to an exception to the rule against hearsay for party admissions.
See Blue Cross Blue Shield v. Philip Morris, 133 F. Supp.2d 162, 168 (E.D.N.Y. 2001) (holding that the FRE govern despite the applicability of New York substantive law). New York's evidentiary case law may nonetheless be persuasive to the extent that New York's definition of hearsay is the same as that of the FRE. For example, in Gelpi v. 37th Ave. Realty Corp., 721 N.Y.S.2d 380, 381 (1st Dep't 2001), the Appellate Division held that testimony of a plaintiff in a slip-and-fall case concerning a pre-fall statement by a customer to a store employee about a puddle of garlic oil was not inadmissible hearsay because the statement was "not offered to establish the truth of the facts asserted." Gelpi further held that "out-of-court statements by unknown declarants are admissible to establish notice of a dangerous condition, even where the accuracy of the statements is not established." Ibid. (citing Stern v. Waldbaum, 651 N.Y.S.2d 187 (2d Dep't 1996) for the proposition that "it does not matter that the original declarant is unknown and unavailable for cross-examination. Anyone who heard an out-of-court utterance which is offered merely to prove that it was made may testify to it, and have his veracity tested upon cross-examination***") (finding that a store's pre-fall loudspeaker announcement to "clean up a spill of liquid soap in aisle No. 1" was not hearsay because it was not offered to prove the truth of the matter asserted). As such, there was a triable issue of fact in both Gelpi and Stern. So too here.
See also George v. Celotex Corp., 914 F.2d 26, 30 (2d Cir. 1990) ("To be sure, an out of court statement offered not for the truth of the matter asserted, but merely to show that the defendant was on notice of a danger, is not hearsay."); Hurley v. Marriott Corp., Civ. A. Nos. 93-CV-1544 and 94-CV-117 (RSP), 1995 WL 694614, at *3 (N.D.N.Y. Nov. 21 1995) (holding that statements by customers concerning an icy walkway were admissible because they were offered to show notice rather than for the truth of the matter asserted, i.e., that the walkway was icy).
The cashier's statement may also be admitted under an exception to the rule against hearsay to the extent that her statement would constitute an excited utterance. FRE 803(2); David v. Pueblo Supermarket of St. Thomas, 740 F.2d 230, 234-236 (3d Cir. 1984) (affirming district court's ruling that a patron's statement that, "I told them to clean it up about two hours ago — an hour and a half ago" was admissible as an excited utterance where the declarant witnessed another patron slip-and-fall); cf. Tyrrell v. Wal-Mart Stores, Inc., 719 N.Y.S.2d 163 (3d Dep't 2000) (finding that an employee's statement that, "I told somebody to clean this mess up" was admissible as a spontaneous declaration).
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is denied and that parties shall appear before Part III of this Court on the 21st day of June, 2002 at 3:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.