     14-3388
     Chaudhry 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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of January, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                RICHARD C. WESLEY,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       ZANIB CHAUDHRY,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-3388
16
17       TARGET CORPORATION,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        KAREN R. KING (Jeffrey Newton,
22                                             Damon C. Andrews, and Lance A.
23                                             Polivy on the brief), Paul,
24                                             Weiss, Rifkind, Wharton &
25                                             Garrison LLP, New York, New
26                                             York.
27


                                                  1
 1   FOR APPELLEES:             DANIEL J. KRISCH, Halloran & Sage
 2                              LLP, Hartford, Connecticut.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the District of Connecticut (Shea, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Zanib Chaudhry appeals from the judgment of the United
12   States District Court for the District of Connecticut,
13   granting summary judgment in favor of defendant-appellee
14   Target Corporation (“Target”). We assume the parties’
15   familiarity with the underlying facts, the procedural
16   history, and the issues presented for review.
17
18        We review an order granting summary judgment de novo,
19   drawing all permissible inferences in favor of the nonmoving
20   party. Lederman v. N.Y.C. Dep’t of Parks & Recreation, 731
21   F.3d 199, 202 (2d Cir. 2013). Plaintiff asserts common law
22   negligence against Target for creating or failing to remedy
23   a dangerous condition that caused her to slip and fall on an
24   unknown substance (thought to be spilled orange liquid).
25   Chaudhry raises two issues: (1) whether Target had actual or
26   constructive notice of the spill; and (2) whether Target’s
27   “mode of operation” gave rise to a foreseeable risk of
28   injury to customers and plaintiff’s injury was proximately
29   caused by an accident within that zone of risk.
30
31        As to constructive notice, plaintiff abandoned this
32   theory of liability during the summary judgment hearing.
33   See Special App’x at 2. The argument is therefore waived.
34   See Island Software & Comput. Serv., Inc. v. Microsoft
35   Corp., 413 F.3d 257, 262 (2d Cir. 2005).
36
37        As to “mode of operation” liability, we agree with the
38   district court that the claims do not survive summary
39   judgment. The law of the forum state governs a diversity
40   case. See Omega Eng’g, Inc. v. Omega, S.A., 432 F.3d 437,
41   443 (2d Cir. 2005). In Connecticut, the mode of operation
42   doctrine allows proof of “negligence upon presentation of
43   evidence that the mode of operation of the defendant’s
44   business gives rise to a foreseeable risk of injury to
45   customers and that the plaintiff’s injury was proximately
46   caused by an accident within the zone of risk.” Fisher v.
47   Big Y Foods, Inc., 3 A.3d 919, 926 (Conn. 2010) (quoting

                                  2
 1   Kelly v. Stop & Shop, Inc., 918 A.2d 249, 263 (Conn. 2007)).
 2   We conclude here that Target’s mode of operation did not
 3   give rise to a foreseeable risk of injury to customers of
 4   the sort experienced by plaintiff.
 5
 6        For the foregoing reasons, and finding no merit in
 7   Chaudhry’s other arguments, we hereby AFFIRM the judgment of
 8   the district court.
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12




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