                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



  ANTOINETTE MICHELE HUDSON,

                          Plaintiff,

                 v.                                           Civil Action No. 17-0372 (ESH)

  HARRIS TEETER, LLC, et al.,

                         Defendants.




                                  MEMORANDUM OPINION

        Plaintiff Antoinette Hudson sued defendant Harris Teeter, LLC, based on an incident in

May 2015, when Hudson alleges that she slipped, fell, and sustained injuries as a result of

applesauce left on the supermarket floor. (Compl. ¶¶ 6–7, 12, ECF No. 1-1.) Harris Teeter has

filed a motion for summary judgment, arguing that the undisputed facts are legally insufficient to

support Hudson’s negligence claim. (Def.’s Mot. Summ. J., ECF No. 24 (“Mot.”).) Upon

consideration of the pleadings and the record before it, the Court concludes that Hudson has

failed to show that a genuine issue of material fact exists and thus grants defendant’s motion for

summary judgment.

                                        BACKGROUND

   I.      FACTS

        On May 26, 2015, plaintiff Antoinette Hudson and her work supervisor, Boyle Stuckey,

went together to a Harris Teeter supermarket in northeast Washington, D.C., to buy lunch. (Pl.’s

Opp. Mot. Summ. J. at 2, ECF No. 25 (“Opp.”); see Mot. ¶ 1.) Hudson and Stuckey were talking

and walking from the dairy section to the front of the store when Hudson “slipped on applesauce
that was on the floor, and attempting to brace herself struck her left shoulder and head on a

display of mayonnaise jars before finally falling on her right hip.” (Opp. at 2 (citing Pl.’s Ex. 1,

at 41–46, ECF No. 25-1); see Mot. ¶ 2.) No Harris Teeter representative was nearby, so Stuckey

“left to get the manager, Charles Magaraci.” (Opp. at 2 (citing Pl.’s Ex. 2, at 18, ECF No. 25-

2).) Hudson told Magaraci that “she had hurt her hip and felt dizzy.” (Id. at 3 (citing Pl.’s Ex. 1,

at 49–50).) She then left the Harris Teeter with Stuckey and returned to work, but she soon left

and “drove herself to an urgent care center for treatment.” (Id. (citing Pl.’s Ex. 1, at 54–56).)

         Neither Hudson nor Stuckey saw the applesauce before Hudson fell, nor do they know

when or how the applesauce came to be on the floor. (Mot. ¶¶ 3–5; Opp. ¶¶ 3–6.) Hudson and

Stuckey also do not know whether anyone from Harris Teeter knew the applesauce was on the

floor. (Mot. ¶¶ 7–8; Opp. ¶¶ 7–8 (citing Pl.’s Ex. 1, at 50; Pl.’s Ex. 2 at 19).) Hudson adds that

she and Stuckey testified in their depositions that they saw someone stocking wine near where

she fell, that Hudson “remembers the unknown wine stocker as the person who cleaned up the

mess,” and that Stuckey “believed the Harris Teeter Manager [Magaraci] actually instructed the

wine stocker to do so.” (Opp. ¶¶ 7–8 (citing Pl.’s Ex. 1, at 50–51; Pl.’s Ex. 2, at 19).)

         It is also undisputed that Harris Teeter uses a “‘Gleason System’ for tracking store

inspections,” and that the Gleason Report for the day in question indicates that “checks were

made every hour and that the area of the fall was marked ‘clear.’” (Opp. ¶ 10 (citing Pl.’s Ex. 5,

ECF No. 25-5); Def.’s Reply Mot. Summ. J. at 2, ECF No. 26 (“Reply”).)

   II.      PROCEDURAL HISTORY

         Plaintiff filed her complaint in the Civil Division of the Superior Court of the District of

Columbia on January 23, 2017. (Compl. at 3.) Harris Teeter filed a notice of removal and an

answer to the complaint on March 2, 2017. (ECF No. 1; Answer, ECF No. 2.) After discovery,



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on December 6, 2017, Harris Teeter moved for summary judgment. (Mot., ECF No. 24.)

                                     STANDARD OF REVIEW

        “[T]he plain language of [Federal Rule of Civil Procedure] 56(c) mandates the entry of

summary judgment, after adequate time for discovery and upon motion, 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). Although “[t]he evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in [her] favor,” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986), a mere “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.”

Id. at 252. Stated in a context similar to the one at bar, “[w]hile it is true that plaintiff is entitled

to every legitimate inference which may be deduced from the evidence, she is not entitled in the

absence of any evidence as to how long the alleged defect existed, to have a jury speculate in her

favor on this essential element.” Jones v. Dist. of Columbia, 123 A.2d 364, 366 (D.C. 1956).

                                              ANALYSIS

        In its motion for summary judgment, Harris Teeter argues that Hudson has failed to

present the evidence necessary to make out an essential element of her legal claim for

negligence. (Mot. at 6–9.) Hudson argues in response that she has either presented the

necessary evidence, or that defendant’s evidence is unreliable. (Opp. at 5–7.) The Court finds

that Hudson has not met her burden.

        “To succeed in a negligence action under District of Columbia law, the plaintiff bears the

burden of proof on three issues: the applicable standard of care, a deviation from that standard by

the defendant, and a causal relationship between that deviation and the plaintiff’s injury.”



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Martin v. Omni Hotels Mgmt. Corp., 206 F. Supp. 3d 115, 121 (D.D.C. 2016). Where liability is

“predicated upon the existence of a dangerous condition it is necessary to show that the party

against whom negligence is claimed had actual notice of the dangerous condition or that the

condition had existed for such length of time that, in the exercise of reasonable care, its existence

should have become known and corrected.” Sullivan v. AboveNet Comm’ns, Inc., 112 A.3d 347,

356 (D.C. 2015) (quoting Anderson v. Woodward & Lothrop, 244 A.2d 918, 918 (D.C. 1968)

(per curiam)). “The negligence of a store proprietor in such a case is premised on an obligation

of due care to protect customers from risks created by employees or risks created by other

customers.” Safeway Stores, Inc. v. Morgan, 253 A.2d 452, 453 (D.C. 1969). If she cannot

show actual notice, “it is incumbent upon the injured customer to establish a factual predicate

sufficient to support a finding that the condition existed for such length of time that it should

have become known and have been corrected.” Id. To so establish, “facts must be presented

from which a reasonable inference of constructive notice can be drawn.” Id.

       Notice is a question ordinarily left for the jury, but where there is no testimony about how

a “substance came to be on the floor or how long it had been there, or that any employee of

[defendant] knew of its existence,” the court may properly decide the case as a matter of law

“because of [the] failure to present prima facie proof of liability.” Anderson, 244 A.2d at 919.

“Although each case has its own peculiar circumstances, the duration of the alleged hazard is an

important factor in establishing constructive notice.” Wilson v. Wash. Metro. Area Transit Auth.,

912 A.2d 1186, 1190 (D.C. 2006). “If a plaintiff can conclusively establish that a foreign object

was present on the ground for a specific amount of time, it can become a question for the jury as

to whether the defendant had constructive notice given the amount of time the hazard was

present.” Kindig v. Whole Foods Market Grp., Inc., 930 F. Supp. 2d 48, 52 (D.D.C. 2013). But



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“proof of the period of time during which a condition might have existed does not permit an

inference that the condition did exist during that entire period or any substantial part of it.”

Hines v. Safeway Stores, Inc., 379 A.2d 1174, 1175 (D.C. 1978). “[W]hen a plaintiff proves

only that a hazard existed for an undetermined period of time, she has not shown that the

defendant had constructive notice.” Martin, 206 F. Supp. 3d at 128.

       Harris Teeter argues that Hudson has failed to present evidence that Harris Teeter had

notice of the applesauce on the floor. (Mot. at 7–8.) As to actual notice, Hudson responds that

“Stuckey testified that he seemed to remember the wine stocker stating that he had ‘told them

[Harris Teeter] about it [the dangerous condition]’ prior to [] Hudson’s fall.” (Opp. at 5 (citing

Pl.’s Ex. 2, at 38).)1 As to constructive notice, Hudson argues that there had been no inspection

of the area where she fell “for approximately 59 minutes” and that Harris Teeter’s “‘Gleason

System’ is demonstrably inadequate in establishing a record of safety conditions, as it failed to

record the spill that resulted in Ms. Hudson’s injury fall less than 10 minutes after” it had

occurred. (Id. at 6.)

       First, Hudson’s actual notice argument is flawed since Hudson admits that she does not

know whether any “official Harris Teeter employee knew of the alleged applesauce.” (Id. ¶¶ 7–

8.) Even without this concession, however, her argument is doomed because Stuckey’s

testimony is equivocal, based on a vague memory, and thus cannot be credited. See Martin,

206 F. Supp. 3d at 123 (“At the summary judgment stage, the Court must assess whether there is

sufficient non-speculative evidence to support a verdict in favor of the non-movant.”). Stuckey




1
  Plaintiff cites Stuckey’s deposition to support this statement, but the quoted portion of the
deposition actually appears on page 37, which is not included in plaintiff’s excerpted version.
Defendant includes the deposition in full, and so the discussion that follows refers to defendant’s
exhibit. (Def.’s Ex. 3, at 37, ECF No. 24-3.)
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responded to a question about whether the wine stocker had seen the applesauce before Hudson

fell by saying, “I’m not sure. And I kind of recollect him saying—making a comment,

something like he told them about it or something like that, but I’m not sure.” (Def.’s Ex. 3,

at 37, ECF No. 24-3.) Veiled in uncertainty, this statement does not constitute even a scintilla of

evidence, let alone more. See Liberty Lobby, 477 U.S. at 252 (“[T]here must be evidence on

which the jury could reasonably find for the plaintiff.”). Finally, even if Stuckey’s memory were

reliable about what was said, when and to whom, there would be no affirmative evidence that the

wine vendor was a Harris Teeter employee, so the statement is inadmissible hearsay. See Fed. R.

Civ. Proc. 56(c)(2); Fed. R. Evid. 801(c). In fact, to the extent that there is any evidence of the

wine stocker’s relationship to Harris Teeter, that evidence tends to suggest that he was not an

employee. (See Def.’s Ex. 3, at 23–24 (Stuckey: “. . . I don’t know if he worked for Harris

Teeter. I think they might be, like, vendors . . . that stock the shelves.”); see also id. at 24

(Stuckey noting that he is familiar with “how grocery stores work” and that the man nearby “was

probably a vendor stocking the shelves because he didn’t have—because the people that work

there, they have certain shirts on and he didn’t have one of those shirts”).) Plaintiff has therefore

failed to offer any evidence that Harris Teeter had actual notice of the spilled applesauce.

        Second, Hudson’s constructive notice argument is equally flawed. After admitting that

she has no evidence to show how long the applesauce was on the floor and admitting that neither

she nor Stuckey could “say with certainty whether an official Harris Teeter employee knew of

the alleged applesauce,” (Opp. ¶¶ 7–8), Hudson argues that it is enough to show that defendant’s

system for recording spills and maintaining safe conditions is inadequate. (Opp. at 6.) There is

no evidentiary support for the claim that Harris Teeter’s system is inadequate, but perhaps more

importantly, Hudson also fails to demonstrate how this alleged inadequacy would be relevant to



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the Court’s analysis because it is unrelated to whether Harris Teeter had notice of the applesauce.

“[F]rom this record no reasonable jury could conclude that the [applesauce was on the floor] ‘. . .

for such a duration of time that had reasonable care been exercised the hazard would have been

discovered.’” See Martin, 206 F. Supp. 3d at 128 (quoting Wilson, 912 A.2d at 1190).

Establishing evidence that could show how long the applesauce was on the floor is Hudson’s

burden and she has not carried it.

                                         CONCLUSION

       Defendant’s motion for summary judgment is granted and the case is dismissed because

the plaintiff failed to show that a genuine issue of material fact exists. A separate Order, ECF

No. 28, accompanies this Memorandum Opinion.



Date: February 12, 2018                                      /s/ Ellen Segal Huvelle
                                                             ELLEN SEGAL HUVELLE
                                                             United States District Judge




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