                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 VICTORIA TOLENTINO,

         Plaintiff,

                v.                                       Civil Action No. 18-3060 (JEB)


 TARGET CORPORATION,

         Defendant.


                                  MEMORANDUM OPINION

       Plaintiff Victoria Tolentino slipped and fell on a clear substance on the floor of a Target

store here in the District of Columbia. She sued Target, alleging that it had failed both to

maintain its property in a reasonably safe manner and to warn her of the dangerous condition.

Defendant now moves for summary judgment, arguing that it lacked notice — either actual or

constructive — of the slippery substance. Finding that there is evidence to the contrary, the

Court will deny the Motion.

I.     Background

       As it must at this stage, the Court sets out the facts in the light most favorable to Plaintiff.

See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). On April 9, 2018, Tolentino walked

into a Target store located in the Columbia Heights neighborhood of Northwest Washington.

See ECF No. 21 (Def. MSJ), Exh. 1 (Deposition of Victoria Tolentino) at 35:7–13; Def. MSJ at

1. Upon entering, she headed toward the restroom but slipped on something before getting there.

Id. at 55:9–19; see also ECF No. 25 (Pl. Opp.), Exh. 2 (Target Surveillance Video) (capturing




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incident at 3:21:48). Plaintiff did not see this hazard before coming upon it because she was

looking straight ahead. See Tolentino Depo. at 55:20–56:18.

       The cause of her fall, however, quickly became apparent. While still on the ground,

Tolentino noticed a “lake” of clear liquid around her. Id. at 56:19–57:18. Not only that, but she

also observed what appeared to be shopping cart marks in the vicinity of the spill. Id. at 59:2–

10. She testified that moments after her fall a Target employee came to her assistance. Id. at

62:1–13; Def. MSJ, Exh. 2 (Pl. Answers to Interrogs.), ¶ 2; see also Video at 3:22:12. That

employee, Plaintiff maintains, knew about the spill before the accident occurred. See Pl. Ans. to

Interrogs., ¶ 2. Specifically, she told Tolentino that she had reported the spill and had requested

its clean-up. See Tolentino Depo. at 64:1–2 (“[S]he told me it was reported and it wasn’t

cleaned.”).

       Nearly seven months after her fall, on November 3, 2018, Plaintiff brought a negligence

claim against Target in the Superior Court of the District of Columbia. See ECF No. 2 (Notice

of Removal), Exh. A (Complaint) at ECF p. 8. Tolentino contends that the store should have

mopped up the liquid or, at the very least, posted a warning about it. Id. at 8–9. Its failure to do

either, she alleges, ultimately left her with a “serious, painful[,] and permanent” injury to her

“head, neck, body, and limbs.” Id. at 9. As recompense for her harms, Plaintiff seeks, inter alia,

damages to the tune of $350,000. Id. On December 21, 2018, Defendant removed the matter

here on diversity-jurisdiction grounds. Id., Exh. B (Removal) at ECF p. 15. After a round of

discovery and an unsuccessful attempt at mediation, Target now moves for summary judgment.

See ECF No. 20 (Joint Status Rep. of Jan. 16, 2020).




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II.    Legal Standard

       Upon a party’s motion, Federal Rule of Civil Procedure 56(a) requires the Court to “grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” A fact is “material” if it can affect

the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “genuine” if

the evidence is such that a reasonable jury could return a verdict for the non-moving party. See

Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895.

       When a motion for summary judgment is under consideration, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty

Lobby, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). The

non-moving party’s opposition, however, must consist of more than mere unsupported

allegations. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

“A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by

“citing to particular parts of materials in the record,” such as affidavits, declarations, or other

evidence. See Fed. R. Civ. P. 56(c)(1). If the non-movant’s evidence is “merely colorable” or

“not significantly probative,” summary judgment may be granted. Liberty Lobby, 477 U.S. at

249–50.

III.   Analysis

       To establish negligence in the District of Columbia, a plaintiff must prove that: “(1) the

defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the

breach of duty proximately caused damage to the plaintiff.” Haynesworth v. D.H. Stevens Co.,

645 A.2d 1095, 1098 (D.C. 1994). On the first element, it is a settled principle that “a business




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invitor has a duty of care to its patrons while they are on its premise.” Novak v. Capital Mgmt.

& Dev. Corp, 452 F.3d 902, 907 (D.C. Cir. 2006) (applying D.C. law); see Smith v. Safeway

Stores, Inc., 298 A.2d 214, 216 (D.C. 1972). When liability is predicated upon the existence of a

dangerous condition, a plaintiff must show that the defendant had notice — either actual or

constructive — of it. See Mixon v. WMATA, 959 A.2d 55, 58 (D.C. 2008) (quoting

Marinopoliski v. Irish, 445 A.2d 339, 340 (D.C. 1982)). Here, Target contends that there is no

evidence it had either. See ECF No. 21 (Def. MSJ) at 5–9.

       A. Actual Notice

       In order to establish actual notice, the plaintiff must present evidence that a defendant

was, in fact, aware of the hazard. See, e.g., Falco v. WMATA, 2020 WL 473887, at *4 (D.D.C.

Jan. 29, 2020) (detailing defendant’s knowledge of slippery conditions, including wet-floor signs

and testimony of its employees concerning water on premises). To shoulder that burden here,

Tolentino points to video footage of the entrance to the store. See Pl. Opp. at 2–3.

       The footage shows that, about 32 seconds before Plaintiff’s incident, another individual

slipped in the same area. See Video at 3:21:16 and 3:21:48. A Target security guard in the

vicinity saw that person slip and fall. Id. at 3:31:01–3:21:32. Moments later, the guard stepped

away from the location of the incident, approached another patron, and reviewed her receipt. Id.

at 3:21:38. As the guard was doing so, Tolentino entered the store and fell shortly thereafter —

in the very same place as the first individual. Id. at 3:21:32–48.

       From this footage alone, a reasonable jury could determine that, because one of its guards

witnessed the fall of the first patron, Target had actual notice that the floor was slippery. That is

because, as a general matter, the knowledge acquired by a corporation’s agent — here, the




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guard — is imputed to the corporation itself. See Wayne J. Griffin Elec., Inc. v. Sec’y of Labor,

928 F.3d 105, 109 (D.C. Cir. 2019).

       The jury, moreover, could find additional support of actual notice in Tolentino’s

testimony. As noted, a Target employee told Plaintiff that she had “reported [the spill] and [that]

it wasn’t cleaned.” Tolentino Depo. at 64:1–2. Defendant attempts to cast doubt on this

testimony by pointing out that she could not remember certain details about the employee. Id. at

62:6–65:3 (unable to recollect employee’s gender and clothing). Yet, viewing this evidence in

the light most favorable to Plaintiff, see Talavera, 638 F.3d at 308, a reasonable trier of fact

could well conclude that the employee referenced at her deposition is the guard who appears in

the surveillance footage. Chiefly, the guard appears to be black and came to her assistance

moments after the fall — facts that line up with Plaintiff’s testimony. See Tolentino Depo. at

62:11–13, 63:17–18, 64:22–65:3; Video at 3:22:00–10.

       In Target’s view, all this is beside the point because the guard’s remarks to Tolentino are

inadmissible hearsay. See Def. MSJ at 7–8; ECF No. 26 (Def. Reply) at 6–7. Under Federal

Rule of Evidence 801(d)(2)(D), a statement is not hearsay and may be admitted against an

opposing party if it “was made by the party’s agent or employee on a matter within the scope of

that relationship and while it existed.”

       According to Defendant, this Rule does not apply to the guard’s comments because

Plaintiff has not shown an agency relationship. The Court disagrees. The surveillance footage is

replete with examples of the guard conducting herself as a Target agent or employee. At several

points, for example, she checks customers’ receipts. See, e.g., Video at 3:11:48, 3:14:43,

3:17:43. At others, she returns handheld shopping baskets and carts to their respective locations.

Id. at 3:15:57–3:16:30, 3:17:03. She also appears to assist the individuals, including Plaintiff,




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who slipped on the floor. Id. at 3:21:16, 3:22:00–3:23:00. What is more, Defendant has failed to

present evidence that she is not its agent or employee. For these reasons, the Court finds that the

guard’s remarks are admissible.

       Given the above, a factfinder could reasonably determine that Target actually knew about

the spill. That being so, the Court need not wade into the constructive-notice inquiry.

       B. Spill Response

       As a fallback, Target argues that even if it was aware of the liquid on the floor, it did not

breach its duty to Plaintiff. That is because it did not have enough time to do anything about the

spill before Tolentino slipped. See Def. Reply at 7–8; see also Video at 3:21:16–48 (guard

became aware of spill 32 seconds before Plaintiff’s fall). To support its position, Target cites a

Maryland case for the proposition that a defendant is entitled to summary judgment when it has

“less than four minutes” to address a hazard on its premises. See Def. Reply at 8 (quoting Rehn

v. Westfield Am., 837 A.2d 981, 985–87 (Md. App. 2003)).

       Rehn stands for no such thing. To start, the record there did not establish exactly how

much time the defendant had to respond to a spill (other than the fact that it was under four

minutes). See Rehn, 837 A.2d at 986. In granting summary judgment, the court noted that a jury

would have to engage in impermissible “speculat[ion]” and “conjecture” to pinpoint the relevant

timeframe. Id. at 987. Here, by contrast, a jury does not have to make any guesses — video

footage captured the entire incident. Indeed, Rehn, which is not binding here, did not reduce to

any bright-line rule the time in which a danger must be dealt with. Instead, it made clear that

whether an invitor has taken reasonable action to eradicate or warn of a given hazard will

necessarily depend on the circumstances. Id. at 984–85 (collecting cases). A jury could




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conclude that in the circumstances here, the guard, having witnessed the prior fall, should have

remained in place and warned other shoppers of the hazard until it could be cleaned.

IV.    Conclusion

       The Court, accordingly, will deny Defendant’s Motion for Summary Judgment. A

separate Order so stating will issue this day.

                                                            /s/ James E. Boasberg
                                                            JAMES E. BOASBERG
                                                            United States District Judge
Date: April 7, 2020




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