Ricci v. Wal-Mart Stores E., LP

LINDA RICCI and JOSEPH RICCI, Plaintiffs, v. WAL-MART STORES EAST, LP, Defendant.

16 Civ. 6920 (JCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 10, 2018

OPINION AND ORDER

Plaintiffs Linda Ricci ("Mrs. Ricci") and Joseph Ricci ("Mr. Ricci") (collectively, "Plaintiffs") commenced this action against Defendant Wal-Mart Stores East L.P. to recover for personal injuries allegedly suffered by Mrs. Ricci when she slipped and fell in Defendant's store in White Plains, New York (the "Wal-Mart Store") on December 15, 2014. (Docket No. 1).¹ Plaintiffs filed their Complaint on May 23, 2016 in the Supreme Court of the State of New York, County of Westchester. (Docket No. 1). Defendant removed the action to this Court pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. (Docket No. 1). Before this Court is Defendant's Motion for Summary Judgment, dated February 28, 2018, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Motion"). (Docket No. 13). Plaintiffs opposed the Motion on March 30, 2018, (Docket No. 17), and Defendant replied on April 4, 2018, (Docket No. 23).² For the reasons set forth below, the Court grants Defendant's Motion.

I. BACKGROUND

The following facts are taken from Defendant's Statement of Material Facts submitted pursuant to Local Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New York, ("Def. 56.1"), (Docket No. 15), Plaintiffs' Response to Defendant's 56.1 Statement ("Pl. 56.1 Resp."), (Docket No. 21), Defendant's Reply to Plaintiffs' Response ("Def. 56.1 Reply"), (Docket No. 22), and the exhibits submitted by the parties in support of their contentions. ³ The facts are recounted "in the light most favorable to" Plaintiffs, the non-movants. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018). Any disputes of material fact are noted.

On December 15, 2014, Plaintiffs visited the Wal-Mart Store located at 275 Main Street in White Plains, New York. (Def. 56.1 ¶¶ 1, 5-6; Pl. 56.1 Resp. ¶¶ 1, 5-6; Ricci, L. Dep. at 12:3-13). Plaintiffs allege Mrs. Ricci suffered personal injuries from a fall in the ladies' apparel department of the store when she stepped on a hanger. (Def. 56.1 ¶¶ 1-2; Pl. 56.1 Resp. ¶¶ 1-2).

Plaintiffs arrived at the Wal-Mart Store together and shopped for approximately twenty to twenty-five minutes. (Def. 56.1 ¶ 6; Pl. 56.1 Resp. ¶ 6; Ricci, L. Dep. at 35:10-14). Mrs. Ricci began shopping alone without her husband as she looked for leggings. (Def. 56.1 ¶¶ 7-8; Pl. 56.1 Resp. ¶¶ 7-8; Ricci, L. Dep. at 33:2-5, 35:20-36:13). As Mrs. Ricci searched for leggings, she walked through the Plus Size area of the ladies' apparel department. (Def. 56.1 ¶ 9; Pl. 56.1 Resp. ¶ 9; Ricci, L. Dep. at 35:15-19). Between approximately 12:00 p.m. and 12:30 p.m., while walking through the Plus Size area of the ladies' apparel department, Mrs. Ricci's right footmade contact with a hanger on the floor and she fell forward onto her knees. (Def. 56.1 ¶ 10; Pl. 56.1 Resp. ¶ 10; Ricci, L. Dep. at 38:16-23; 40:15-17; Ricci, L. Aff. ¶ 4). Mrs. Ricci did not see the hanger before she slipped on it, but as she was falling, she observed that there were three opaque hangers with clips together on the floor. (Def. 56.1 ¶¶ 11-12; Pl. 56.1 Resp. ¶¶ 11-12; Ricci, L. Dep. at 36:21-39:23). Mrs. Ricci described the hangers as "plastic," "white" and an "opaque color," and noted that they had "pinchers" used to hang pants. (Ricci, L. Dep. at 37:9-38:4; see also Ricci, L. Aff. ¶¶ 4-5). Photographs Plaintiffs allege were taken immediately after Mrs. Ricci's fall show two hangers on the floor. (Ricci, L. Aff. Ex. A). Mrs. Ricci testified that, to her knowledge, there were no witnesses to her fall. (Ricci, L. Dep. at 40:18-19). Neither Mrs. Ricci nor her husband observed the hangers on the floor prior to Mrs. Ricci's fall. (Def. 56.1 ¶¶ 11, 13-14; Pl. 56.1 Resp. ¶¶ 11, 13-14).

According to Mrs. Ricci's testimony, after falling, she remained on the floor for approximately ten minutes because she was unable to get up on her own. (Ricci, L. Dep. at 40:20-22; 41:18-23). During that ten-minute period, Mrs. Ricci called for assistance and her husband called back, "Where are you?" (Id. at 41:3-14). Mrs. Ricci responded, "I'm down here on the floor." (Id. at 41:15-17). Mr. Ricci went to get a Wal-Mart employee for assistance. (Id. at 44:2-10). Approximately four minutes after Mrs. Ricci fell, her husband returned with a Wal-Mart employee and the Wal-Mart employee asked Mrs. Ricci if she needed an ambulance. (Id. at 44:6-15). Mrs. Ricci declined. (Id.). Mrs. Ricci testified at her deposition that the Wal-Mart employee stated, "I see you fell on the hangers on the floor." (Id.). The employee also told Mrs. Ricci that if she had to fall she "fell in a good place" because there was a security camera on the ceiling. (Id. at 44:25-45:6). In an affidavit submitted in opposition to the Motion, Mrs. Ricci attests that the Wal-Mart employee also stated, "[T]here always seems to be hangers on the floor.If you had to fall, it could not have been in a better place for you, because there is a security camera right above you, so it is on film." (Ricci, L. Aff. ¶ 7). The parties dispute the substance of Mrs. Ricci's conversation with the Wal-Mart employee who first responded to the scene of the accident and dispute whether or not the employee told Mrs. Ricci "there always seems to be hangers on the floor" and that the accident was caught "on film." (Def. 56.1 Reply ¶ 44). Defendant avers that Mrs. Ricci's accident was not captured on camera because the Plus Size area of the ladies' apparel department was not under surveillance on the day of the accident. (Id.)

While Mrs. Ricci was still on the floor, a second Wal-Mart employee came over to Mrs. Ricci and brought a stool. (Ricci, L. Dep. at 46:3-13). At this point, Mr. Ricci helped his wife up and assisted her with sitting on the stool. (Id. at 46:15-25). In her affidavit, Mrs. Ricci attests that she observed the second Wal-Mart employee kicking three to four white plastic hangers, similar to the one Mrs. Ricci slipped on, out of the aisle and underneath a clothing rack. (Ricci, L. Aff. ¶ 6). The parties dispute whether or not this occurred. (Pl. 56.1 Resp. ¶ 43; Def. 56.1 Reply ¶ 43). Mrs. Ricci also spoke with a third Wal-Mart employee who was later identified as William Defossett, the store's assistant manager at the time of the accident. (Ricci, L. Dep. at 48:3-16; Defossett Dep. at 35:16-39:7). He confirmed that Mrs. Ricci did not need an ambulance and completed a written customer incident report. (Ricci, L. Dep. at 48:19-49:23; Pl. Ex. 2). The incident report stated: "Customer walking threw [sic] aisle & slipped on hanger in women's dept (plus size)." (Pl. Ex. 2). Under claim description, the incident report states: "Customer fell from hanger on the floor." (Id.). The incident report further states that the floor was wood, there were no defects, the surface was clean and dry, and there were no obstructions. (Id.). After Mrs. Ricci's fall, Plaintiffs completed their purchases at the Wal-Mart Store and left together. (Ricci, L. Dep. at 56:15-57:23).

Every Wal-Mart employee is responsible for the safety of customers and trained to immediately remove garbage and debris from the store's floor, including hangers. (Def. 56.1 ¶ 23; Pl. 56.1 Resp. ¶ 23). Hangers were to be removed from the floor to avoid customer slip and falls. (Def. 56.1 ¶ 27; Pl. 56.1 Resp. ¶ 27). Felicia Needam, a Wal-Mart employee who previously worked as a sales associate in the ladies' apparel section of the Wal-Mart Store, indicated that all personnel are supposed to do a store wide safety sweep every hour as announced over the store P.A. system. (Def. 56.1 ¶ 38; Pl. 56.1 Resp. ¶ 38; Needam Dep. at 17:12-18:24). A safety sweep is when employees go around the store and pick up everything from the floor, including hangers, garbage, spills and other debris. (Def. 56.1 ¶¶ 29, 39; Pl. 56.1 Resp. ¶¶ 29, 39). Blanca Caillahua, a Wal-Mart employee who was previously a member of the Wal-Mart Store's maintenance staff, was "constantly engaged in 'safety sweeps.'" (Def. 56.1 ¶ 28; Pl. 56.1 Resp. ¶ 28). There is no indication in the record showing Ms. Hoffman or Ms. Caillahua were working in the ladies' apparel department of the Wal-Mart Store on the day of the accident.

The parties do not dispute that hangers were on the floor in the ladies' apparel section of the Wal-Mart Store "on a daily basis." (Def. 56.1 ¶ 35; Pl. 56.1 Resp. ¶ 35; Needam Dep. at 22:3-9). Ms. Caillahua, the maintenance member, testified that during her safety sweeps of the ladies' apparel department, there were "[n]ot a lot" of hangers, but "sometimes [she] saw a few and then [she] had to pick them up." (Def. 56.1 ¶ 31; Pl. 56.1 Resp. ¶ 31; Caillahua Dep. at 25:5-9). Ms. Caillahua agreed that the reason for the continuous safety sweeps was because there were regularly hangers on the floor. (Pl. 56.1 Resp. ¶ 31; Caillahua Dep. at 25:25-26:15).

The Wal-Mart Store's operations assistant manager, Nicole Hoffman, testified that during her training in 2014 she was advised that "hangers were a safety hazard for a lot of stores." (Def.56.1 ¶ 18; Pl. 56.1 Resp. ¶ 18; Hoffman Dep. at 88:22-24).⁴ In accordance with Wal-Mart's instructions regarding slip-and-fall hazards, Ms. Hoffman testified that she warned Wal-Mart employees, "Don't leave them [hangers] on the floor. If you see them, pick them up." (Def. 56.1 ¶¶ 21-22; Pl. 56.1 Resp. ¶¶ 21-22). However, she stated that "in all the accidents that I've ever handled in a Walmart . . . slipping on a hanger was not one of them." (Def. 56.1 ¶ 19; Pl. 56.1 Resp. ¶ 19; Hoffman Dep. at 87:23-25). There were no reported accidents involving hangers in the Wal-Mart Store for one year prior to December 15, 2014, the accident date. (Def. 56.1 ¶ 40; Pl. 56.1 Resp. ¶ 40).⁵

II. LEGAL STANDARDS

A. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil...