1 16-1816-cv Urrutia v. Target Corp. 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 , IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 3 rd day of March, two thousand seventeen.
Present: J OHN M. W ALKER , J R ., D EBRA A NN L IVINGSTON , Circuit Judges , V INCENT L. B RICCETTI , District Judge .*

_____________________________________ V IRGINIA U RRUTIA , Plaintiff-Appellant , v. 16-1816-cv
T ARGET C ORPORATION D / B / A T ARGET , Defendant-Appellee

. †

_____________________________________ For Plaintiff-Appellant: P HILIP M ONIER , III, Monier Law Firm, PLLC, New York, New York David Resnick, Gary Morgenstern, David Resnick & Associates, P.C., New York, New York

* Judge Vincent L. Briccetti, of the United States Dist rict Court for the Southern District of New York, sitting by designation. † The Clerk of Court is instructed to amend the caption to the above.2 For Defendant-Appellee: B RIAN P. M ORRISSEY , Michael Crowley, Connell Foley LLP, New York, New York Appeal from a judgment of the United States District Court for the Eastern District of New York (Brodie, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED

. Plaintiff-Appellant Virginia Urrutia appeals from the district court’s grant of summary judgment in favor of Defendant-Appellee Targ et Corporation (“Target”) on Urrutia’s slip-and-fall negligence claim. We assume the parties’ familiarity with the facts, the procedural history of the case, a nd the issues on appeal. In May 2014 Urrutia, her son, and her grandson visited a Target st ore on Staten Island. Urrutia testified that shortly after entering the stor e, she saw an area of clear liquid on the floor. She mentioned the liquid to her son, but did no t tell any Target employ ees about it. About forty-five minutes later, Urrutia slipped and fell in the same place where she had seen the clear liquid on the floor earlier. Although Urrutia did not see the liquid she slipped in just prior to her fall, she noticed clear liquid on the floor after her fall. Urrutia’s son testified that he saw clear liquid on the floor immediat ely after Urrutia’s fall. Mich ael Hay, a Target employee who was responsible for the store that day, also obser ved clear liquid on the floor after the accident. Two other employees made the same observation. The Target store where Urrutia slipped and fe ll has various safety practices in place. Hay testified that employees discussed safety is sues during daily meeti ngs. Employees receive training on cleaning up spills, and there are spill stations throughout the store stocked with supplies for cleaning spills. Employees inspect the floors for spills very frequently.3 According to Hay, he had last inspected the area where Urrutia slipped and fell about fifteen minutes before the incident. At that time, Ha y “didn’t see anything that would be unsafe.” J.A. 115. Urrutia filed a lawsuit in state court asserti ng a claim for negligence, and Target removed the suit to federal court on diversity grounds. Target moved for summ ary judgment, arguing that Urrutia had failed to raise a genuine issue of material fact about whether Target had constructive notice of the presence of the clear liquid in which Urrutia slipped. The district court ruled in Target’s favor, concluding there wa s insufficient evidence from which a jury could conclude the liquid was vi sible and apparent. Urrutia appealed. We review de novo a district court’s grant of summary judgment, resolving all factual ambiguities and drawing all permissible infe rences in favor of the nonmoving party. Estate of Gustafson ex rel. Reginella v. Target Corp. , 819 F.3d 673, 675 (2d Cir. 2016). Summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judg ment as a matter of law.” Fed. R. Civ. P. 56(a). In this negligence action re moved to federal court on di versity grounds, New York substantive law governs. See Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78 (1938). In New York, “[t]o establish a prima facie case on a slip and fall” the plaintiff must show either that the defendant “created a dangerous condition” or that the defendant “had actual or constructive knowledge of the condition.” Lemonda v. Sutton , 268 A.D.2d 383, 384 (1st Dep’t 2000). Urrutia does not contend that Ta rget created the dange rous condition or had actual notice about it; only constructive notice is at issue here. “To c onstitute constructive notice, ‘a defect must be visible and apparent and it must exist for a suffi cient length of time prior to the accident to permit defendant’s employees to discover and remedy it.’” Hartley v. Waldbaum, Inc. , 694 A.D.3d 902, 903 (2d Dep’t 2010) (quoting Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 837 (1986)). The district court concluded that Urrutia failed to produce evidence from which a reasonable jury could conclude th at the liquid in which she sli pped was visible and apparent. We disagree. Urrutia testified that when she entered the store about forty-five minutes before the accident, she saw a clear liquid on the floor near the area where she eventually fell. In fact, Urrutia’s son testified that, alt hough he did not see the liquid th en, she told him about the clear liquid on the floor shortly after th ey entered the store. After the incident, Urrutia reported that she slipped in a clear liquid on the floor. The Target employee who assisted Urrutia after the incident testified that after Urrutia fell, he obs erved a small amount of clear liquid on the floor. Based on Urrutia’s testimony that she saw clear liquid on the floor appr oximately forty-five minutes before she fell, and the evidence that she slipped in clear liquid in the same spot, a jury could reasonably conclude that the cl ear liquid was visible and apparent. See Yioves v. T.J. Maxx, Inc. , 29 A.D.3d 572, 572 (2d Dep’t 2006); Navetta v. Onondaga Galleries LLC , 106 A.D.3d 1468, 1469–70 (4th Dep’t 2013). In reaching the opposite conclusion, the di strict court emphasized that Urrutia’s post-accident observation of th e liquid was insufficiently corr oborated by other circumstantial evidence of the hazard’s visibi lity and apparentness. Assumi ng corroboration is a requirement, Urrutia provided it. Urrutia’s pre-accident observation of the liquid corroborated her post-accident observation. See Alexander v. Ma rriott Int’l, Inc. , No. 01-cv-1124 (LMM), 2002 WL 1492125, at *3 (S.D.N.Y. July 11, 2002) (findi ng genuine issue of material fact about constructive notice based in part on witness’s pre-accident observ ation of the puddle in which the plaintiff eventually fell). Testimony from Urru tia’s son and Hay that they each observed the5 liquid after her fall also corroborated Urrutia’s post-acci dent observation. See Navetta , 106 A.D.3d at 1469–70. The district court also emphasi zed that there was evidence in the record suggesting that the liquid in which Urrutia slipped was not visibl e and apparent. This evidence—including that Urrutia and her son did not see the clear liquid on the floor imme diately before her fall, that Urrutia’s son characterized the clear liquid on the floor as “ not noticeable,” a nd that the clear liquid on the floor wa s not stark or vast—could perhaps permit a jury to conclude that despite Urrutia’s testimony, the clea r liquid on the floor was not visible and apparent. However, a jury could also believe that Urrutia and her son were not looking at the floor immediately before her fall, that Urrutia’s son was mistaken about wh ether the liquid was noticeable, and that even a modest puddle of clear liquid on light-colored tile is sufficiently visible for an employee to notice and remedy. The evidence in the record does not foreclose a reasonabl e conclusion that the clear liquid Urrutia slipped in was visible and apparent, and Target was not entitled to summary judgment on this basis. We have considered the parties’ remaini ng arguments on appeal, and none alter our conclusion. Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings consistent with this summary order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk