16-1816-cv
Urrutia v. Target Corp.
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND 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 DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT 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 Foley Square, in the City of New York, on the
3rd day of March, two thousand seventeen.

Present:
            JOHN M. WALKER, JR.,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges,
            VINCENT L. BRICCETTI,
                  District Judge.*
_____________________________________

VIRGINIA URRUTIA,

                          Plaintiff-Appellant,

                  v.                                                      16-1816-cv

TARGET CORPORATION D/B/A TARGET,

                  Defendant-Appellee.†
_____________________________________

For Plaintiff-Appellant:                         PHILIP MONIER, 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 District Court for the Southern District of New York,
sitting by designation.
†
    The Clerk of Court is instructed to amend the caption to the above.


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For Defendant-Appellee:                     BRIAN P. MORRISSEY, 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 Target Corporation (“Target”) on Urrutia’s

slip-and-fall negligence claim.   We assume the parties’ familiarity with the facts, the procedural

history of the case, and the issues on appeal.

       In May 2014 Urrutia, her son, and her grandson visited a Target store on Staten Island.

Urrutia testified that shortly after entering the store, she saw an area of clear liquid on the floor.

She mentioned the liquid to her son, but did not tell any Target employees 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 immediately after Urrutia’s fall.   Michael Hay, a Target employee who

was responsible for the store that day, also observed clear liquid on the floor after the accident.

Two other employees made the same observation.

       The Target store where Urrutia slipped and fell has various safety practices in place.

Hay testified that employees discussed safety issues during daily meetings.       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.



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According to Hay, he had last inspected the area where Urrutia slipped and fell about fifteen

minutes before the incident.      At that time, Hay “didn’t see anything that would be unsafe.”

J.A. 115.

        Urrutia filed a lawsuit in state court asserting a claim for negligence, and Target removed

the suit to federal court on diversity grounds. Target moved for summary 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 was insufficient evidence from which a jury could

conclude the liquid was visible and apparent.      Urrutia appealed.

        We review de novo a district court’s grant of summary judgment, resolving all factual

ambiguities and drawing all permissible inferences 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 judgment as a matter of law.”      Fed. R. Civ. P. 56(a).

        In this negligence action removed to federal court on diversity 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 Target created the dangerous condition or had actual notice about

it; only constructive notice is at issue here.   “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.’”              Hartley v. Waldbaum, Inc., 69


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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 that the liquid in which she slipped 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, although he did not see the liquid then, she told him about the clear

liquid on the floor shortly after they 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 observed a small amount of clear liquid on the floor.

Based on Urrutia’s testimony that she saw clear liquid on the floor approximately 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 clear 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 district court emphasized that Urrutia’s

post-accident observation of the liquid was insufficiently corroborated by other circumstantial

evidence of the hazard’s visibility and apparentness. Assuming corroboration is a requirement,

Urrutia provided it.      Urrutia’s pre-accident observation of the liquid corroborated her

post-accident observation. See Alexander v. Marriott Int’l, Inc., No. 01-cv-1124 (LMM), 2002

WL 1492125, at *3 (S.D.N.Y. July 11, 2002) (finding genuine issue of material fact about

constructive notice based in part on witness’s pre-accident observation of the puddle in which the

plaintiff eventually fell). Testimony from Urrutia’s son and Hay that they each observed the


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liquid after her fall also corroborated Urrutia’s post-accident observation. See Navetta, 106

A.D.3d at 1469–70.

       The district court also emphasized that there was evidence in the record suggesting that

the liquid in which Urrutia slipped was not visible and apparent.   This evidence—including that

Urrutia and her son did not see the clear liquid on the floor immediately before her fall, that

Urrutia’s son characterized the clear liquid on the floor as “not noticeable,” and that the clear

liquid on the floor was not stark or vast—could perhaps permit a jury to conclude that despite

Urrutia’s testimony, the clear 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 whether 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 reasonable 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’ remaining 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




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