12-4682-cv
Bynoe 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.

       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 20th day of December, two thousand thirteen.

PRESENT:

           JOSÉ A. CABRANES,
           PETER W. HALL,
           DENNY CHIN,
                                Circuit Judges.
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BRENDA BYNOE,

                     Plaintiff-Appellant,

                               -v.-                                                           No. 12-4682-cv

TARGET CORPORATION,

                      Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT:                                                  DAVID L. KREMEN, Oshman & Mirisola, LLP,
                                                                          New York, NY.

FOR DEFENDANT-APPELLEE:                                                   MITCHELL B. LEVINE, Fishman McIntyre,
                                                                          P.C., New York, NY.


       Appeal from a judgment, entered October 26, 2012, of the United States District Court for
the Eastern District of New York (Sandra L. Townes, Judge).



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     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is VACATED and the cause is
REMANDED for further proceedings consistent with this order.

         Plaintiff Brenda Bynoe appeals from the judgment of the District Court granting summary
judgment in favor of defendant Target Corporation (“Target”). Bynoe’s suit, removed to federal
court on the basis of diversity jurisdiction, seeks damages for personal injury after she slipped and
fell on a puddle of syrup from a fallen Del Monte fruit cup while shopping at a Target store in
Brooklyn, New York.

        We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review, which we reference only as necessary to explain our decision to
vacate and remand.

                                                   DISCUSSION

        “Under New York law, a landowner, who did not create the dangerous condition, is liable for
negligence when a condition on his land causes injury only when the landowner had actual or
constructive notice of the condition.” Taylor v. United States, 121 F.3d 86, 89–90 (2d Cir. 1997).
Bynoe does not contend that Target or its employees caused the syrup spill, or that anyone
employed by Target possessed actual knowledge of the spill. Therefore, the sole disputed issue at
summary judgment was whether a reasonable jury could find that Target had constructive notice of
the syrup spill. Here, Target had the initial burden of establishing that it did not have such
constructive notice.

         “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.” Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837 (1986). The District Court
correctly held that “there are two ways in which a plaintiff can establish constructive notice on the
part of the defendant: either (i) by demonstrating that the defective condition (a) was visible and
apparent and (b) had existed for a sufficient length of time to permit the defendant to discover and
remedy the condition, or (ii) by demonstrating that the defect is a recurring condition.”1 “Under the
principles of Gordon, awareness of a general dangerous condition is not enough to charge a defendant
with constructive notice of the particular dangerous condition that caused an injury.” Taylor, 121 F.3d
at 90.

        Here, the parties do not dispute that the spilled syrup was visible and apparent, and so the
only issue is whether the spilled syrup had been present for a sufficient length of time for purposes
of imputing constructive notice to Target. As to this issue, two independent eyewitnesses averred

        1   Bynoe does not raise on appeal the issue of constructive notice based on a recurring dangerous condition.



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that the liquid looked fresh, because it did not have any footprints, tracks, or wheel marks in it,
through it, or around it. They also stated that the spill did not appear to be dirty, was syrupy, mostly
clear, and “a little bit creamy in color.” A Target store manager testified that as part of a regular
inspection of the premises, she had walked past the aisle between ten and thirty minutes prior to
being notified of the accident. Bynoe herself described the spill as “clear,” “a little gluey,” and in the
shape of a “broken circle,” with liquid running out where her fall had broken the circle. Later, while
in the emergency room, Bynoe described the syrup that remained on her slippers as dried and sticky.

        Based on this evidence, the District Court concluded that Target had met its initial burden
of producing evidence suggesting that the spilled syrup had not existed for a significant amount of
time prior to the accident.

         In response, Bynoe did not adduce evidence to contradict the eyewitnesses’ statements or
the store manager’s testimony about routine store inspections. Instead, she attempted to meet her
burden to rebut Target’s case by relying on expert testimony. Her expert, William Marletta, indicated
in his report that “in order for [the spilled syrup] to dry up and become sticky” it must have existed
on the floor “for at least an hour, if not several hours” prior to the accident. In his deposition, he
further noted that the syrup could become “whitish” as it evaporates and crystallizes. Bynoe
contends that Dr. Marletta’s testimony creates a genuine issue of material fact, precluding summary
judgment.

        The District Court found that the expert’s conclusion “ignore[d] Plaintiff ’s description of
the syrup at the scene of the accident and [was] instead based only on her later description of the
syrup” while at the hospital. On that basis, it found the testimony insufficient to satisfy Bynoe’s
burden, and, accordingly, granted summary judgment to Target.

        Having reviewed the record, we conclude that summary judgment was not merited. The
District Court found that the expert misinterpreted plaintiff ’s testimony and based his conclusions
on incorrect facts. We disagree. Bynoe testified that the syrup at the time of her fall was “gluey,”
and that it was sticky when she stepped in it. The expert’s conclusions are based, inter alia, on those
facts. He did not, contrary to the District Court’s finding, rely only on Bynoe’s description of the
syrup after she arrived at the hospital. Further, Dr. Marletta’s testimony that the syrup would turn
“whitish” as it sat is also consistent with the two independent eyewitnesses’ statements that the spill
was “creamy in color.” A jury, of course, need not credit the expert’s conclusions or the plaintiff ’s
underlying testimony. See Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir. 2000). But on summary
judgment, the District Court must construe the evidence in the light most favorable to the non-
moving party, and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The District Court did not properly do so here.

        We note that it may well have been within the District Court’s discretion to conclude that the
expert’s testimony was inadmissible as unreliable or speculative under Daubert v. Merrell Dow


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Pharmaceuticals, Inc., 509 U.S. 579 (1993). See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999) (district court’s exclusion of expert testimony reviewed for abuse of discretion); Zaremba v.
Gen. Motors Corp., 360 F.3d 355, 357 (2d Cir. 2004). However, the District Court did not explicitly
engage in a Daubert analysis when it rejected Dr. Marletta’s expert opinion, and as a result it appears
to have either missed the point of certain of his findings and conclusions, or failed to view them in
the light most favorable to the plaintiff. Under these circumstances, we conclude that Byone’s
expert testimony creates a sufficient question of fact to defeat summary judgment in Target’s favor.

                                           CONCLUSION

        We have reviewed the record and the parties’ arguments on appeal. For the reasons set out
above, we VACATE the judgment of the District Court, entered October 26, 2012, and REMAND
the cause for further proceedings consistent with this order.



                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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