Biernacki v. Target Corporation

• Court: District Court, N.D. California
• Decided: October 28, 2019
• Docket: 4:18-cv-07381
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 JOANNE BIERNACKI, Case No. 18-cv-07381-DMR

7 Plaintiff, ORDER ON DEFENDANT'S MOTION 8 v. FOR SUMMARY JUDGMENT

9 TARGET CORPORATION, Re: Dkt. No. 19 10 Defendant.

11 This case arises out of a slip-and-fall incident that occurred in a Target store on March 12, 12 2016. Plaintiff Joanne Biernacki filed an action for negligence and premises liability against 13 Defendant Target Corporation (“Target”). Target now moves for summary judgment. [Docket Nos. 14 19 (“Mot”), 27 (“Reply”).] Biernacki opposes. [Docket No. 24 (“Opp.”).] The court held a hearing 15 on October 10, 2019. 16 Upon consideration of the parties’ briefing and oral arguments, the court grants Target’s 17 motion. 18 I. FACTUAL BACKGROUND 19 The factual background is taken from the deposition testimony of Biernacki and two Target employees, Theresa Ruslender and Megan Mendenhall. 20 A. Biernacki’s Testimony 21 On March 12, 2016, Beirnacki visited the Target store located at 4400 Towne Center Blvd. 22 in El Dorado Hills, California. [Docket No. 1, Ex. A (“Compl.”).] She was accompanied by her 23 four-year-old daughter. [Docket No. 19-1 (“Hamoy Decl.,”), Ex. 1 (“Biernacki Depo.”) at 31:21.] 24 The two arrived at the store sometime between 9:00 and 11:00 a.m. Id. at 31:15. 25 Upon entering the store, Biernacki obtained a shopping cart. Id. at 34:5-7. She then walked 26 through the main entrance area and made a left turn. Id. at 34:23-25-35:1. Less than a minute later, 27 1 left foot “going back behind [her].” Id. at 37:7-11. She stated that she “was literally doing the splits 2 . . . and there was nothing I could do to stop it.” Id. at 37:7-11. At the moment Biernacki was 3 falling, she did not know why her foot was sliding. Id. at 37:23-24. Once she had fallen to the 4 ground, she saw water on the floor to the front and left of her. Id. at 38:2-10. The water was close 5 enough that Biernacki could touch it with her hand. Id. at 38:11-13. The pool of water was about 6 three inches by one inch across.1 Id. She did not see where the water had come from and did not 7 see any container or other item that could be the source of the water. Id. at 38:14-18. She did not 8 know how long the water had been there. Id. at 39:5-7. Biernacki testified that no one was close to her at the time she felt her right foot sliding. Id. at 37:16-22. She did not notice whether any Target 9 employees were in the area. Id. at 39:8-11. 10 B. Ruslender’s Testimony 11 Target employee Theresa Ruslender was working in the cash register area when Biernacki 12 fell.2 Hamoy Decl., Ex. 3 (“Ruslender Depo.”) at 45:14-23. Ruslender was “running . . . back and 13 forth” to make sure that customers were able to check out properly, guiding guests to available 14 checkout lanes, and checking and putting items away. Id. at 35:6-9. She acknowledged that it was 15 her responsibility to check the aisle where Biernacki fell. Id. at 11-13. She stated that Biernacki 16 fell in the main aisle, between the registers and the jewelry department, and that Ruslender was two 17 or three feet away from Biernacki at that time. Id. at 47:4-7. Ruslender was not looking directly at 18 Biernacki when she fell, but she knew there was someone “off [her] right shoulder” and she heard 19 an “ow.” Id. at 47:4-7, 14-23. Ruslender saw Biernacki slipping “in [a] splitting motion” before 20 Biernacki went down on one knee and then fell to her side. Id. at 91:9-20. 21 The parties agree that Ruslender prepared an incident report after the event. The report is 22 23 1 The testimony on this point is ambiguous. Biernacki said that the puddle was “maybe about three 24 inches across and one inch down.” Biernacki Depo. at 38:20-22. Defendant’s counsel then asked, “Was that the size of like a small puddle that you saw, the three inch by five inch? Would that be a 25 fair description?” Id. at 38:23-25. Biernacki replied “yes.” Id. at 39:1. Therefore, it is not clear whether Biernacki’s testimony is that the size of the puddle was three inches by one inch or three 26 inches by five inches.

27 2 The parties submitted different portions of Ruslender’s deposition testimony. See Hamoy Decl., 1 referenced in both parties’ briefs as well as in Ruslender’s deposition testimony. However, the only 2 incident report submitted into evidence is attached to Fetto’s declaration as Exhibit A, and is signed 3 by a “Teagan Friend,”3 who is otherwise not mentioned by either party. Neither party submitted 4 Ruslender’s report. As a result, the evidentiary record is not as clear as it could be. For example, 5 Biernacki says that Ruslender’s report stated that there were “sanitary wipes” on the floor in the area 6 where Biernacki fell (Opp. at 3), but the incident report attached to Fetto’s declaration does not 7 reference “sanitary wipes.” See Fetto Decl., Ex. A. 8 Ruslender testified that the ground was clean and dry when she arrived at the scene. Ruslender Depo. at 63:11-14. However, she recorded in her report that “one of the sanitary wipes” 9 was on the floor. Id. at 33:17-22, 63:13-14. In her deposition, Ruslender testified that there were 10 actually two or three sanitary wipes on the floor at the general scene of the incident. Id. at 63:6-18. 11 She also stated that there is a sanitary wipe dispenser at the front of the store. Id. at 64:7-16. 12 Although the deposition testimony is not entirely clear on this point, it appears that Ruslender agreed 13 that the wipes she found on the floor were of the same type as the ones that are distributed at the 14 front of the store. See id. According to Ruslender, the wipes “weren’t in the area of where 15 [Biernacki] was on the floor.” Id. at 63:17-24. Ruslender testified that the wipes were “to the left 16 of [Biernacki’s] cart” where her daughter had just run, and were “in a trail to [Biernacki’s] 17 daughter.” Id. at 51:1-2. Ruslender stated that she believed the reason the sanitary wipes were on 18 the ground were because Biernacki’s daughter was playing with them and dropped them as she 19 walked. Id. at 51:19-24. Ruslender said that she did not recall seeing the daughter grab any wipes, 20 nor did she recall seeing any wipes in the daughter’s hands. Id. at 86:3-6, 88:5-6. 21 Ruslender testified that she had been walking back and forth in the area and did not see any 22 sanitary wipes on the ground before Biernacki fell. Id. at 45:24-25-46:1, 13-14. She stated that she 23 would have noticed if something had been left on the floor. Id. at 46:2-4. Ruslender testified that 24 there is no store procedure for keeping “sweep logs” to record how often the floor stores are swept, 25 except for the restrooms. Id. at 46:16-24. Ruslender testified that two other employees came over 26 27 1 after Biernacki fell and she showed them the sanitary wipes. Id. at 49:1-5. She said that they did 2 not say anything to her about it. Id. at 49:6-8. 3 C. Mendenhall’s Testimony 4 Megan Mendenhall is another Target employee who responded to the incident. The 5 deposition testimony references a written statement that Mendenhall wrote about the fall, but neither 6 party submitted a copy of it. [Hamoy Decl., Ex. 2 (“Mendenhall Depo.”) at 25:1-20.] Mendenhall 7 was paged to the scene after Biernacki fell. Id. at 25:15-16. She did not see or hear the incident. 8 Id. at 26:7-10. She had not been in the area within 30 minutes prior to the fall and did not know the condition of the floor before Biernacki fell. Id. at 26:20-25, 27:1-2. According to Mendenhall, the 9 ground was clean and dry at the time of the incident. Id. at 27:3-6. She said that she felt the ground 10 in the area and did not see any debris or feel any water on the floor. Id. at 27:7-11, 31:13-17. 11 Mendenhall stated that Biernacki did not say what she slipped on. Id. at 31:9-17. 12 II. LEGAL STANDARD FOR RULE 56 MOTIONS 13 A court shall grant summary judgment “if . . . there is no genuine dispute as to any material 14 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden 15 of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex 16 Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the court must view the evidence in the light 17 most favorable to the non-movant. See Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted). 18 A genuine factual issue exists if, taking into account the burdens of production and proof that would 19 be required at trial, sufficient evidence favors the non-movant such that a reasonable jury could 20 return a verdict in that party’s favor. Anderson v. Libby Lobby, Inc., 477 U.S. 242, 248. The court 21 may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. See id. at 22 249. 23 To defeat summary judgment once the moving party has met its burden, the nonmoving 24 party may not simply rely on the pleadings, but must produce significant probative evidence, by 25 affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, supporting the claim that 26 a genuine issue of material fact exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 27 F.2d 626, 630 (9th Cir. 1987) (citations omitted). In other words, there must exist more than “a 1 scintilla of evidence” to support the non-moving party’s claims, Anderson, 477 U.S. at 252; 2 conclusory assertions will not suffice. See Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 3 (9th Cir. 1979). Similarly, “[w]hen opposing parties tell two different stories, one of which is 4 blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not 5 adopt that version of the facts” when ruling on the motion. Scott, 550 U.S. at 380. 6 III. DISCUSSION 7 Target raises two arguments in support of summary judgment. First, it argues that 8 Biernacki’s “vague and generic testimony does not provide sufficient evidence for a trier of fact to find that Target’s negligence caused [her] injury.” Mot. at 6. Second, Target asserts that Biernacki 9 has not proffered any evidence that Target had actual or constructive notice of any alleged dangerous 10 condition. Id. at 6-7. Because the court finds that Target is entitled to summary judgment on the 11 issue of constructive notice, the court does not reach the issue of causation. 12 A. Legal Standard for Constructive Notice 13 Premises liability is a type of negligence. Peneda v. Ennabe, 61 Cal. App. 4th 1403, 1407 14 (1998) (“[T]he liability of landowners for injuries to people on their property [is] governed by 15 general negligence principles.”). California law establishes that “although a store owner is not an 16 insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in 17 keeping the premises reasonably safe.” Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1205, 36 P.3d 11, 18 14 (2001). To succeed on a negligence claim, a plaintiff must establish that the defendant “had a 19 duty to [the] plaintiff, that the duty was breached by negligent conduct, and that the breach was the 20 cause of damages to the plaintiff.” Brooks v. Eugene Burger Mgmt. Corp., 215 Cal. App. 3d 1611, 21 1619, 264 Cal. Rptr. 756 (Ct. App. 1989). 22 “In the context of premises liability, ‘the owner’s actual or constructive knowledge of the 23 dangerous condition is a key to establishing its liability.’” Carrillo v. Target Corp., No. 17-cv- 24 05693-WHA, 2019 WL 201514, at *1 (N.D. Cal. Jan. 15, 2019) (quoting Ortega, 26 Cal. 4th at 25 1206). In order to survive a summary judgment motion, a plaintiff must present evidence regarding 26 the defendant’s alleged constructive notice of the defect. Eidem v. Target Corp., 2011 WL 3756144, 27 at *8 (C.D. Cal. Aug. 24, 2011). The plaintiff has the burden of showing that the defendant “had 1 notice of the defect in sufficient time to correct it.” Ortega, 26 Cal. 4th at 1206. “The ‘mere 2 possibility’ that a defendant had notice of a dangerous condition is not enough to impose liability 3 under California law.” Lemberg v. JPMorgan Chase Bank, N.A., No. 17-cv-05241-JSC, 2019 WL 4 1975441, at *5 (N.D. Cal. Apr. 16, 2019). 5 Biernacki does not assert that Target had actual notice of the alleged dangerous condition 6 before her fall. Therefore, the court limits its analysis to the issue of constructive notice. 7 B. Analysis 8 Target contends that it did not have notice of any dangerous condition because its employees “inspected the area before the incident and did not see any liquid on the floor.” Mot. at 7. The 9 deposition testimony is vague on this point; it is unclear, for example, whether Ruslender was 10 specifically checking the floor for defects or spills, and how much time had passed since she last 11 checked the floor area where Biernacki fell.4 In opposition, Biernacki argues that Target has no 12 evidentiary support for its claim that they did not have constructive notice of the wet floor, because 13 Target did not keep any inspection reports or sweep logs, does not have a video of the event, and 14 does not have any pictures of the area where the fall happened.5 Id. She asserts that “[t]he fact that 15 no Target employee found [the wipe] before Ms. Biernacki’s fall (and that they kept no 16 contemporaneous logs to the contrary) is proof that they did not look to see if the area where Ms. 17 Biernacki’s fell [sic].” Opp. at 4. 18 Biernacki’s argument turns the applicable legal standard on its head, because Biernacki— 19 not Target—bears the burden of offering evidence from which a reasonable juror could infer that 20 Target had constructive notice of a dangerous condition. Eidem illustrates this point. In Eidem, the 21 plaintiff fell in the defendant’s store and claimed that the fall was caused by a sticky substance on 22 the floor. 2011 WL 3756144, at *4. None of the witnesses nor the defendant’s employees saw any 23

24 4 There is one reference to “earlier testimony” where Ruslender apparently stated that she had checked the floor area 20 seconds before the incident, but that portion of her testimony was not 25 submitted. See Ruslender Depo. at 88:16-21.

26 5 Biernacki’s three-page opposition does not explain her theory of the case. Biernacki testified that she saw a small pool of water when she fell, but devotes most of her sparse argument to the issue of 27 the sanitary wipes that Ruslender found. The court infers that Biernacki’s theory is that she believes 1 liquid or substance on the floor. Id. The court found that there was a genuine issue of material fact 2 as to whether a dangerous condition existed given the conflicting testimony between the plaintiff 3 and the defendant’s employees. Id. at *7. However, it determined that the plaintiff failed to 4 introduce “any affirmative evidence regarding [the defendant’s] constructive notice of the alleged 5 sticky substance” she slipped on. Id. at *9-10. The plaintiff relied solely on the defendant’s lack of 6 documentation regarding its store inspections. Id. at *7. The court held that the plaintiff had not 7 met her burden of producing evidence regarding constructive notice and granted summary judgment 8 in favor of the defendant. Id. at *7-10. The court reasoned that even if a jury did not credit the defendant employee’s testimony that he had inspected the floor 15 minutes before the plaintiff fell, 9 there would still be no affirmative evidence to support the plaintiff’s position that the defendant had 10 constructive notice of the defect. Id. at *9. 11 Other courts have similarly granted summary judgment where the plaintiff failed to 12 introduce affirmative facts regarding the defendant’s constructive notice. See, e.g., Lemberg, 2019 13 WL 1975441, at *6 (granting summary judgment where the plaintiff “failed to meet her burden and 14 offer evidence demonstrating Defendant’s actual or constructive knowledge of any dangerous 15 condition at the ATM at-issue.”); Ellis v. Target Corp., 2016 WL 9185390, at *4 (C.D. Cal. July 19, 16 2016) (noting that “it is [the plaintiff’s] burden to set forth evidence that affords a reasonable basis 17 to conclude that [the defendant] had notice of a dangerous condition and reasonable time to remove 18 the condition”); Carrillo v. Target Corp., No. 17-cv-05693-WHA, 2019 WL 201514, at *2 (N.D. 19 Cal. Jan. 15, 2019) (granting summary judgment where “[t]he record [was] silent as to whether or 20 not defendant knew of the spill, how the spill occurred, the amount of time the spill existed on the 21 floor prior to plaintiff’s fall, or the timing and scope of defendant’s inspections of the store’s aisles”). 22 In contrast, courts have denied summary judgment where there is affirmative evidence from which 23 a jury could conclude that the defendant had constructive notice. See Sorensen v. Target Corp., No. 24 12-cv-04025-JCS, 2013 WL 6513827, at *7 (N.D. Cal. Dec. 10, 2013) (denying summary judgment 25 because the plaintiff proffered video surveillance footage that a jury could decide contradicted the 26 defendant’s account of how long the dangerous condition existed). 27 Here, Biernacki does not offer affirmative evidence that Target had constructive notice that 1 there were sanitary wipes or any other dangerous condition on the floor. Instead, she points to 2 Target’s lack of evidence on these issues, such as a video or photographs. However, a plaintiff “may 3 not compensate for the absence of affirmative evidence by faulting [the defendant’s] lack of 4 evidence.” Ellis, 2016 WL 9185390, at *6; see also Sorensen, 2013 WL 6513827, at *7 (“[A]bsence 5 of sweep logs alone might be insufficient to create a genuine factual dispute.”). A plaintiff “must 6 present affirmative evidence in order to defeat a properly supported motion for summary judgment 7 . . . even where the evidence is likely to be within the possession of the defendant, as long as the 8 plaintiff has had a full opportunity to conduct discovery.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Putting the burden on the defendant to prove lack of notice “would, contrary to 9 existing negligence law, permit an inference of negligence to be drawn against the owner based 10 solely on the fact that the fall or accident occurred.” Ortega, 26 Cal. 4th at 1206. 11 Given that Biernacki has offered no affirmative evidence that Target had constructive notice 12 of the alleged dangerous defect, Target is entitled to judgment as a matter of law. 13 IV. SPOLIATION 14 Biernacki argues that Target’s lack of records, including sweep logs, photographs, and video 15 evidence, constitutes spoliation of evidence. Mot. at 4. To the extent that Biernacki is attempting 16 to seek evidentiary sanctions in this motion, the argument is specious. Biernacki cites absolutely no 17 facts or legal authority in support of her position and the court declines to speculate as to what 18 Biernacki’s argument might be. See Indep. Towers of Washington v. Washington, 350 F.3d 925, 19 929 (9th Cir. 2003) (“The art of advocacy is not one of mystery. Our adversarial system relies on 20 the advocates to inform the discussion and raise the issues to the court.”). 21 V. CONCLUSION 22 For the reason stated above, the court grants Target’s motion for summary judgment. The 23 Clerk shall enter judgment for Target and against Biernacki and close the file in this matter. 24 IT IS SO ORDERED. 25 Dated: October 28, 2019 26 ______________________________________ 27 Donna M. Ryu