PAUL A. ENGELMAYER, District Judge.
On August 9, 2013, plaintiff John Chaney went to a Starbucks café in the Bronx for lunch. Upon entry, he saw that a customer in the seating area had plugged a white electrical charger into an outlet. After buying lunch, Chaney sat down near that patron. When Chaney rose from his chair 20 minutes later, he stepped on the charger, causing him to fall and injure
Following discovery, Starbucks now moves for summary judgment. It argues that the material facts are undisputed and that, on those facts, it had no legal duty to Chaney with respect to the charger because the charger was open and obvious, and not inherently dangerous. The Court agrees and therefore grants Starbucks's motion for summary judgment.
The material facts of this case are not in dispute. On August 9, 2013, Chaney went to eat lunch at a Starbucks café located at 3503 Johnson Avenue in the Bronx, New York. Def. 56.1 ¶ 4. He worked nearby and visited this particular Starbucks location about two to three times per week. Id. ¶¶ 5-6.
As Chaney entered, he noticed that a customer in the seating area had plugged a white electrical charger
Chaney walked past the seating area, proceeding to the counter, where he ordered lunch (an egg salad sandwich and an Americano beverage). Def. 56.1 ¶¶ 8-9. He brought his lunch over to a table to eat, and he testified that he did not have to step over the cord in the process of seating himself. Id. ¶¶ 11, 21. The cord remained by the wall, situated about 12 to 14 inches
After about 20 minutes, Chaney finished eating and got up from his table. Def. 56.1 ¶¶ 12-13. As he made his way toward the exit, he stepped on the white square attached to the cord, causing him to lose his balance and fall. Id. ¶ 14. At his deposition, Chaney was unable to explain why, having earlier seen the white square, he had not stepped over it or otherwise avoided it. Id. ¶ 26. Chaney remained on the floor for about three minutes, after which another customer, Nicole Suozo, asked him if he was "okay." Chaney Dep. 44-48. Chaney responded that he was, and then went to the bathroom to "get [himself] together." Id. at 48.
Upon returning, Chaney approached the counter and told two baristas, including Camille Williams, about the incident. Id. They offered him a cup of coffee, which he declined. Id. at 48-52. After waiting about five to 10 minutes, he left. Id. at 52. He did not complete any paperwork or tell any Starbucks representative, apart from the two baristas, about the incident. Id. at 52-53. Chaney testified that he took a photo of the charger after the incident, which he stored on his computer. Id. at 95. However, this photo is not part of the record, and at argument, Chaney's counsel stated that he does not know whether it still exists. 6/9/15 Tr. 28-29.
Chaney then drove to Shire Realty, where he worked as a personal assistant. Chaney Dep. 11, 55. A co-worker took him to the emergency room at the New York-Presbyterian Hospital, where he underwent a precautionary MRI exam. Id. at 55-58. He was immediately discharged, but he returned to the emergency room three days later when he experienced more pain. Id. at 60-62. The doctor prescribed him Naproxen, a pain relief medication, but did not recommend further treatment. Id. at 62-63.
Chaney claims that, as a result of the fall, he sustained back, neck, and head injuries, including herniated discs, multiple forms of traumatic brain injury, severe migraines, headaches, dizziness, and neck pain. Dkt. 1, Ex. E. He claims that he has sought medical attention from the New York-Presbyterian Hospital, Lenox Hill Radiology, and Maximum Orthopaedics and Sports Medicine, and that he was confined to his home for a week after the incident. Id. Chaney seeks special damages of $100,000, including for future medical care. Id.
On January 30, 2014, Chaney filed this negligence action in New York State Supreme Court for Bronx County, claiming that Starbucks neglected its duty to properly maintain the seating area, causing his injuries. Dkt. 1, Ex. A. On March 26, 2014, Starbucks answered, denying liability. Dkt. 1, Ex. B. On August 28, 2014, Starbucks removed the case to this Court, based on diversity jurisdiction. Dkt. 1.
The parties took limited discovery. Starbucks deposed only Chaney, believing that his admissions, including that he saw the charger in the seating area before the incident, establish that the charger was open and obvious and not inherently dangerous, so as to preclude Starbucks's liability for negligence. Chaney deposed only Williams, who testified that she did not recall the incident or whether she had worked on the day in question. See Williams Dep. 14, 18. Neither party deposed Suozo, who, Chaney states, witnessed the incident; adduced evidence as to Starbucks's policies in general, or the practices at the location in question, with respect to supervision of the customer seating area or similar incidents, if any; or
On April 13, 2015, after discovery, Starbucks moved for summary judgment. Dkt. 19. Starbucks filed a declaration, Dkt. 21, and a memorandum of law in support of its motion, Dkt. 20 ("Starbucks Br."), arguing that it had no duty to protect Chaney from an open and obvious condition, which, as a matter of law, was not inherently dangerous. On May 15, 2015, Chaney filed a declaration, Dkt. 24, and a memorandum of law in opposition to the motion, Dkt. 25 ("Chaney Br."), arguing, inter alia, that whether the condition was open or obvious is relevant only to damages, and noting that Starbucks had not established that it lacked actual or constructive notice of the ostensibly dangerous condition (the charger, situated in the customer seating area) that allegedly caused his injury. Id. On June 1, 2015, Starbucks filed a reply brief. Dkt. 29 ("Starbucks Reply Br."). On June 9, 2015, the Court held argument. See 6/9/15 Tr.
To prevail on its summary judgment motion, the moving party must "show[ ] that there is no genuine dispute as to any material fact and that [it] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts "in the light most favorable" to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir.2008); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (citation and internal quotation marks omitted). Only disputes over "facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether there are genuine issues of material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003)).
To prevail on a negligence claim, the plaintiff must establish "(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon ex rel. Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392, 489 N.E.2d 1294 (1985); see also Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981). Only the first element, the existence of a legal duty, is in dispute on this summary judgment motion.
As to the first question, "open and obvious is generally fact-specific and thus usually a jury question, [but] a court may determine that a [condition] was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence." Tagle, 97 N.Y.2d at 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 (internal citations omitted). To establish that a condition was "open and obvious," the landowner must demonstrate "that the condition . . . was readily observable by the plaintiff employing the reasonable use of his senses." Powers v. 31 E 31 LLC, 123 A.D.3d 421, 998 N.Y.S.2d 23, 25 (1st Dep't 2014). Such a determination "cannot be divorced from the surrounding circumstances." Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 864 N.Y.S.2d 554, 555 (2d Dep't 2008).
As to the second question, the "inherently dangerous" inquiry is also often a jury question, which "depends on the totality of the specific facts of each case." Russo v. Home Goods, Inc., 119 A.D.3d 924, 990 N.Y.S.2d 95, 97 (2d Dep't 2014). However, the landowner may establish a prima facie entitlement to judgment as a matter of law where the evidence shows that the condition was "not inherently dangerous." Varon, 998 N.Y.S.2d at 434. If, in response, the plaintiff fails to raise "triable issues of fact as to whether the [condition] was inherently dangerous," the Court may resolve this issue as a matter of law. Russo, 990 N.Y.S.2d at 97.
In assessing inherent dangerousness, the Court may consider factors including the inherent nature of the condition at issue, evidence of prior accidents, whether there is a statutory violation, the frequency of inspections, photographs depicting the condition, and expert testimony. See, e.g., Abraido v. 2001 Marcus Ave., LLC., 126 A.D.3d 571, 4 N.Y.S.3d 43, 44 (1st Dep't 2015) (holding curb not inherently dangerous based on daily inspections of its condition, as well as lack of prior complaints); Oldham-Powers v. Longwood Cent. Sch. Dist., 123 A.D.3d 681, 997 N.Y.S.2d 687, 689 (2d Dep't 2014) (holding pole vault box inherently dangerous based on expert testimony that the owner was required to either cover it or post warning signs); Burke v. Canyon Road Rest., 60 A.D.3d 558, 876 N.Y.S.2d 25, 26 (1st Dep't 2009) (holding restaurant's entranceway not inherently dangerous based on a lack of complaints to the general manager, previous accidents, or code violations); Cardia v. Willchester Holdings, LLC, 35 A.D.3d 336, 825 N.Y.S.2d 269, 270 (2d Dep't 2006) (holding parking lot divider not inherently
Where a landowner fails to establish that the condition was "not inherently dangerous," summary judgment is to be denied, and the case is to proceed to trial, even if the condition is found open and obvious, because "the open and obvious nature of the condition is relevant [only] to the issue of the plaintiff's comparative negligence." Cupo, 767 N.Y.S.2d at 43.
The Court grants Starbucks's summary judgment motion because, on the evidence adduced, the condition at issue was open and obvious and could not be found by a jury to be inherently dangerous.
As to the first point, a court may determine whether a condition was "open and obvious as a matter of law when the established facts compel that conclusion." Tagle, 97 N.Y.2d at 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 (internal citations omitted). Chaney's brief did not contest this issue, Chaney Br. 1, presumably because Chaney himself had admitted seeing the charger's white square upon entering the Starbucks café. Chaney Dep. 39. Further, at argument, Chaney's counsel conceded that the white charger was indeed "open and obvious." See 6/9/15 Tr. 33.
In any event, even putting aside counsel's concession, the evidence uniformly supports that the relevant condition, the white charger square offset against the store's orange-colored floor, was "open and obvious." Chaney Br. 3-4; Starbucks Br. 3. Virtually any patron in Chaney's position would have readily noticed the charger by "making reasonable use of his senses," as there was a stark color contrast between the white charger and the orange tile floor. See Def. 56.1 ¶ 19; Chaney Dep. 40; see generally Miller v. Costco Wholesale Corp., 125 A.D.3d 828, 4 N.Y.S.3d 281, 282-83 (2d Dep't 2015) (holding that wheel stop that caused plaintiff's injury was "open and obvious" based on its "contrast to the color of the pavement to which it was affixed"); Gallo v. Hempstead Tpk., LLC, 97 A.D.3d 723, 948 N.Y.S.2d 660, 661 (2d Dep't 2012) (similar).
The fact that Chaney himself saw the charger upon entering the property, see Def. 56.1 ¶ 17; Chaney Dep. 40, although not dispositive of openness and obviousness, is germane: In other cases in which the plaintiff has admitted observing beforehand the condition that caused his injury, courts have considered that factor in finding the condition "open and obvious." See, e.g., Bernth v. King Kullen Grocery Co., 36 A.D.3d 844, 830 N.Y.S.2d 222, 222 (2d Dep't 2007) (holding that an empty merchandise cart in the aisle of a supermarket was "open and obvious" where plaintiff testified he had noticed it shortly before accident); Bellini v. Gypsy Magic Enters., Inc., 112 A.D.3d 867, 978 N.Y.S.2d 73, 75 (2d Dep't 2013) (holding that wheel stop in a parking lot was "open and obvious" where plaintiff testified she had noticed it shortly before accident).
The Court therefore finds the condition here to have been open and obvious.
As to the second prong of the duty analysis, a court may determine whether a condition was "inherently dangerous" as a matter of law when the evidence compels a single conclusion. See, e.g., Varon, 998 N.Y.S.2d at 434. Such is the case here.
The evidence on which Starbucks, the moving party, relies is undisputed: Indeed, it comes from the testimony of Chaney, the only one of the two witnesses to be deposed who recalled the incident. Chaney testified that the white charger square on which he stepped visibly contrasted with the orange tile floor, that he was aware of it upon entering the property, and that he was able to avoid stepping on it when he entered the seating area.
The charger was thus in a position on the floor where a customer would reasonably expect to come across a charger, a point that Chaney himself acknowledged. See Chaney Dep. 39. Such chargers today are in fact ubiquitous in public places in this country, including in cafés, eateries, and other informal establishments like Starbucks that by design invite customers to sit and work on laptops or handheld devices while they drink, eat, or converse. The Court can fairly take judicial notice of this phenomenon.
Although the parties have not cited—and the Court has not found—any case precisely matching these facts, the Court's holding here that the charger on the Starbucks's seating area floor was not inherently dangerous further accords with a line of cases holding that cords and cables are "not inherently dangerous" when situated in areas where a person would ordinarily expect to find them. See, e.g., Holdos v. Am. Consumer Shows, Inc., 91 A.D.3d 823, 937 N.Y.S.2d 303, 304 (2d Dep't 2012) (holding that yellow and blue cable cover, "over which the plaintiff allegedly tripped and fell while attending a trade show," was not inherently dangerous); Booker v. Ky. Ctr. for Arts Corp., No. 05 Civ. 841(MR), 2006 WL 2578303, at *1 (Ky.Ct.App.Sept. 8, 2006) (holding that cords over which plaintiff tripped while exiting movie theater were not inherently dangerous); Rhodes v. Detroit Med. Ctr., No. 262787, 2006 WL 355249, at *1 (Mich.Ct.App.Feb. 16, 2006) (holding that cord next to hospital bed was not inherently dangerous, especially when the "evidence show[ed] there was ample room to avoid the cord" and "objectively viewed, the existence of a cord next to a hospital bed does not pose a uniquely high likelihood of harm"); Dunlop v. Reynolds, 204 So.2d 754, 754-55 (Fla.Dist.Ct.App.1967) (holding that telephone cord was inherently dangerous only when a customer had moved it from the area where it was usually placed).
Chaney has not pointed to any evidence creating an issue of fact that could disturb this outcome. His brief stated that he "does not contest the facts as set forth" by Starbucks, Chaney Br. 1; and in the only deposition Chaney's counsel took, Williams testified that she did not recall the August 9, 2013 incident, or whether she had worked that day, Williams Dep. 14. Chaney asserts that it is "axiomatic that . . . chargers left lying on the floor of a seating area in a public and heavily trafficked retail coffee shop such as Starbucks are inherently dangerous," Chaney Br. 4, but this ipse dixit
Separately, Chaney invokes the common-law doctrine of "momentary forgetfulness," Chaney Br. 4, but this doctrine does not gain him traction on this motion. Chaney's point is that, while he noticed the charger when he entered the Starbucks, he may have forgotten about it at the time he got up to leave. Under the doctrine of momentary forgetfulness, the law, rather than categorically holding against a plaintiff for failing to act on his knowledge, leaves it "for the trier of fact to determine `whether the failure to have the danger in mind was the result of such poor memory or such inattentiveness on the part of the injured person as to charge him with conduct falling below the standard of a reasonably prudent man.'" Flynn v. City of New York, 103 A.D.2d 98, 478 N.Y.S.2d 666, 668 (2d Dep't 1984) (quoting Rugg v. State, 284 A.D. 179, 131 N.Y.S.2d 2, 6 (3d Dep't 1954)).
But, for several reasons, the "momentary forgetfulness" doctrine does not avail Chaney on Starbucks's motion for summary judgment. First, in his deposition, Chaney did not testify that he had forgotten about the charger when he arose to leave. Second, even assuming that such a memory lapse could be inferred from the fact (if found) of Chaney's having stepped on the charger, it is unclear whether the momentary forgetfulness doctrine still applies in New York, at least at the liability stage.
Finally, at argument, Chaney faulted Starbucks for its anemic efforts to develop the factual record. 6/9/15 Tr. 21-23. It is fair to say that neither party here was energetic in discovery. The Court would have particularly benefited from a clearer understanding of the layout of the Starbucks café at issue, where precisely Chaney sat, and where the charger was situated immediately before Chaney fell. Either party could have elicited this testimony from Chaney. The Court also was struck by the absence of any discovery as to
However, for the reasons reviewed above, the evidence in the record did not leave any issue of material fact as to either openness and obviousness or inherent dangerousness. In the absence of an evidentiary basis on which a trier of fact could find for Chaney on either of these elements, Chaney cannot resist Starbucks's motion for summary judgment by imagining the possibility that as-yet undiscovered facts might rescue his claim. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) ("A party opposing a motion for summary judgment simply cannot make a secret of his evidence until the trial for in doing so he risks the possibility that there will be no trial.") (quoting Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.1972)); Olsen v. K Mart Corp., No. 04 Civ. 3648(JMA), 2005 WL 2989546, at *14 (E.D.N.Y. Nov. 8, 2005) ("A plaintiff opposing such a motion for summary judgment, must come forward with evidence of sufficient facts from which defendant's negligence . . . could be inferred."). Because Chaney has not adduced any such evidence, summary judgment is merited for Starbucks. See Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.1994) ("[T]he moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.") (internal citations omitted).
For the foregoing reasons, the Court grants Starbucks's summary judgment motion. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 19, and to close this case.
SO ORDERED.
Flynn, 478 N.Y.S.2d at 669.
