Goldston v TJ Maxx, Inc.

[*1] Goldston v TJ Maxx, Inc. 2006 NY Slip Op 50865(U) [12 Misc 3d 1152(A)] Decided on May 3, 2006 Supreme Court, Richmond County Gigante, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2006
Supreme Court, Richmond County

Barbara Peterson Goldston, Individually and as Mother and Natural Guardian of Kharisma Goldston, Plaintiff,

against

TJ Maxx, Inc., Defendant.



010575/03

Robert J. Gigante, J.

This is an action to recover compensatory damages for personal injuries allegedly sustained by the infant plaintiff when she fell on premises operated by defendant, TJ Maxx, Inc., a retail store. In Motion No. 2570, defendant moves for summary judgment on the ground that it neither created the allegedly hazardous conditions that caused the infant's injury, nor had actual or constructive notice of the conditions. Plaintiffs cross move (Motion No. 3827) for an order "imposing sanctions on the defendants for spoliation of the key evidence, namely the video surveillance tape and maintenance records for the events in question, in that the Court should either grant preclusion and/or the striking of defendant's answer and set this matter down for an inquest on damages."

As described in the infant plaintiff's most recent affidavit, the accident occurred on July 24, 2002, as she was carrying a toy that she wanted to show her mother. She states the following:

I felt my right foot lose balance from under me and I fell over

a box that had been in the same area of the floor. I saw that the

thing that made me lose my balance was a large, orange and

sticky area of the floor. After I lost my balance I fell over a box

that was also on the floor next to the sticky area. I would have

regained my balance if the box hadn't been there to make me [*2]

fall on my body. I tried to put my hand out to stop the fall but

I landed on it and felt a lot of pain.

Plaintiff Barbara Peterson Goldson, the infant's mother, states in her supporting affidavit that she often shops in the store and "can state with certainty that the store both before as well as on the day of my daughter's accident was not well kept and always had merchandise and other items in the aisles of the various departments including the department where my daughter fell. . . . On prior occasions I did complain to the store personnel about the store's condition."

After the accident, plaintiff returned to the store and photographed the aisle and location where her daughter fell, which, she states, "was in the exact same condition [as] when she was laying on the floor."

Motion No. 2570.

In moving for summary judgment, defendant argues that it neither created nor had notice of the condition alleged to have caused the infant plaintiff's injuries. In addition, it points to alleged discrepancies between the versions of the accident given at plaintiffs' depositions and in the affidavits they have submitted in opposition to the instant motion, arguing that plaintiffs have altered their factual allegations in order to avoid summary dismissal of their complaint. More specifically, defendant argues that, although the Bill of Particulars claims that defendant was negligent and careless in failing to maintain the aisle in a reasonably safe condition by permitting toys, debris and other objects to be strewn across the aisle, plaintiffs at their respective depositions claimed only that the infant was caused to slip by an orange sticky substance on the floor and did not mention having tripped over anything. Defendant contends that only when faced with the instant motion have plaintiffs now claimed that after slipping on the sticky substance, the infant was then caused to trip over an object in the aisle.

In opposition, plaintiffs argue that (1) defendant is liable for the infant's injuries, which resulted from two conditions, viz. the sticky substance that caused her to slip and the debris that prevented her from regaining her balance; and (2) neither the Bill of Particulars, the deposition testimony nor the plaintiffs' latest affidavits contradict each other. On the first point, plaintiffs argue that defendant created the dangerous conditions and/or failed to attend to them, thereby causing the injuries. On the second point, they argue that the Bill of Particulars alleges that defendant failed to maintain the aisle in a safe condition in that, inter alia, it did not keep it free from toys, merchandise, obstructions and debris; that defense counsel's questioning of plaintiffs at their respective depositions was superficial on the issue of causation and did not fully develop the facts; and that the plaintiffs' affidavits in opposition to the instant motion, in setting forth the full account of the accident, did not contradict their prior testimony, but rather, elaborated upon and developed their answers to defense counsel's limited questions at their depositions.

Defendant's motion for summary judgment is denied as it has failed to meet its burden to show that there are no material questions of fact and that it is entitled to judgment as a matter of law (DiVietro v. Gould Palisades Corp, 4 AD3d 324 [2nd Dept 2004]). To establish a prima facie defense, defendant must demonstrate that it did not create the conditions that caused the accident, or that it did not have actual or constructive notice of the condition (Marino v. Stop & Shop Supermarket, 21 AD3d 531 [2nd Dept 2005]). Here, the gist of plaintiffs' argument is that the aisle was not appropriately and timely cleaned, cleared, inspected and maintained in a reasonably safe condition. Viewing the evidence in the light most favorable to plaintiffs and affording them [*3]every permissible inference, a rational jury could find that defendant was responsible for the condition of the aisle and that the condition was a substantial factor in causing the infant's fall and ensuing injury. On the facts as alleged, it cannot be said as a matter of law that the box and other items on the aisle floor did not create an inherently dangerous condition; nor can it be determined whether the condition was readily observable by the reasonable use of the infant plaintiff's senses (Tenebruso v. Toys-R-Us NYTEX, Inc, 256 AD2d 1236 [4th Dept 1998]; compare Schoen v. King Kullen Grocery Corp, 296 AD2d 486 [2nd Dept 2002] in which the adult plaintiff testified that when she entered the aisle she saw flat pieces of cardboard on the floor next to the shelves and a stock boy unpacking boxes, and when she reached for an item on the shelf, she stepped on the flat cardboard which slid, causing her to slip and fall). Moreover, even were a jury to find that allegedly dangerous condition was open and obvious, such a finding may be relevant to the issue of plaintiff's comparative negligence but would not necessarily absolve defendant of liability (Cujo v. Karfunkel, 1 AD3d 48 [2nd Dept 2003]).

Nor has defendant established that plaintiffs have tailored their most recent affidavits to counter the facts and arguments made by defendant in support of the instant motion. The Bill of Particulars placed the condition of the aisle in issue, specifically listing "objects" and "debris" as among the items contributing to the condition. While this issue may not have been adequately pursued at plaintiffs' depositions, the pleadings and the photographic evidence introduced by them at the depositions, when taken together, establish that the sticky substance and the clutter were alleged factors in causing the injury. To that extent, the infant's most recent affidavit, rather than contradicting or altering the factual allegations, appears merely to supplement and clarify them. The extent, if any, to which plaintiffs' most recent statements may raise an issue of credibility is a separate question, inappropriate for resolution on a motion for summary judgment (see e.g. Surdo v. Albany Collision Supply, 8 AD3d 655 [2nd Dept 2004]; .Michelson v. Babcock, 190 AD2d 1037 [2nd Dept 1993]).

Accordingly, defendant's motion for summary judgment is denied (compare Crawford v. AMF Bowling Ctrs,18 AD3d 798, 799 [2nd Dept 2005], holding that a general awareness that patrons might spill their drinks in the carpeted area is insufficient to constitute notice of the particular condition that caused the plaintiff's fall; plaintiff's testimony that she complained to an employee on one previous occasion was insufficient to establish notice of a recurring condition; and plaintiff's amended deposition testimony submitted in opposition to summary judgment failed to raise a triable issue of fact as to her newly-introduced contention that a sloped floor contributed to her fall).

Motion No. 3827.

Plaintiff's cross motion to impose sanctions up to and including striking defendant's answer due to alleged spoliation of evidence also is denied.

Sanctions such as those sought here are only appropriate when a party destroys essential physical evidence and the party seeking that physical evidence is prejudicially bereft of an appropriate means to confront the other's claim or defense with incisive evidence (Madison Ave Caviarteria v. Hartford Steam Boiler Inspection and Ins. Co, 2 AD3d 793 [2nd Dept 2003]). Under the circumstances of this case, however, plaintiffs have not established that defendant's conduct was willful, contumacious, or in bad faith (Gomez v. Metro Terms Corp, 279 AD2d 550 [2nd Dept 2001]; cf. Birch Hill Farm v. Reed, 272 AD2d 282 [2nd Dept 2000]); that it was [*4]negligent (see DiDomennico v. CNS Aeromatik Supplies, 252 AD2d 41 [2nd Dept 1998]); or that it deprived them of the means of proving their claim (see Chiu Ping Chung v. Caravan Coach Co, 285 AD2d 621 [2nd Dept 2001]).

Plaintiffs contend that it is not coincidental that both the daily videotape and the maintenance schedule are "missing." While conceding that they do not know what defendant's store policy was in 2002 in regard to the retention of store videos, plaintiffs contend that the failure to produce the requested items is part of a "deliberate pattern and course of conduct conducted by defendant prejudicial to plaintiff[s]." However, given the testimony of defendant's present store manager that store videotapes routinely are recorded over unless a significant event warrants their retention, and that of the current loss-prevention manager that the area of plaintiff's fall would not necessarily be under constant surveillance, it cannot be said that the routine re-use of the tapes was contumacious or wilful, much less a conscious decision to prejudice plaintiffs' case (see Higgins v. Armored Motor Serv of Am, Inc, 13 AD3d 1087 [4th Dept 2004]). Nor is there any evidence to support plaintiffs' claim that the videotapes are "dispositive of the circumstances of the fall, the condition of the aisle, the duration of the conditions, the acts of cleaning and maintenance or the absence thereof." Any such characterization of the evidence is purely speculative on their part.

Finally, it is undisputed that the maintenance records for the day in question, as they pertain to the cleaning and mopping of the floors, have been destroyed apparently after commencement of the instant litigation.[FN1] However, in the absence of a showing of the relevance of these records to plaintiffs' claim, it cannot be said that the destroyed items were "material and necessary" to the prosecution or defense of this action (CPLR 3101). Here, it is uncontroverted that pursuant to the maintenance contract covering the period at issue the cleaning company (not a party to this action) provided its services each morning, well before the subject accident, which occurred in the early evening. Under these circumstances, defendant's failure to maintain and produce the records does not warrant the imposition of sanctions.

Accordingly, it is

ORDERED that the motion and cross motion are denied.

ENTER

Dated: May 3, 2006________________________

Robert J.Gigante,

J.S.C. Footnotes

Footnote 1: The incident occurred on July 22, 2002, and the instant action was commenced in February 2003. Defendant acknowledges that these maintenance records are kept for one year before being "purged." On February 1, 2005, in accordance with this court's order of January 4 of that year, defense counsel admitted that it no longer was in possession of the records.