UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jennifer J. Dyer
v. Civil No. 12-cv-297-LM
Opinion No. 2014 DNH 220
Target Corporation
O R D E R
Plaintiff, Jennifer J. Dyer, sues Target Corporation
(“Target”) alleging that Target negligently failed to remove a
puddle of water from the floor of its store in Nashua, New
Hampshire, which caused her to slip and fall while shopping.
Dyer originally filed her lawsuit in state court, but Target
removed it to this court on the basis of diversity jurisdiction.
Target now moves for summary judgment. Dyer objects.
Summary Judgment Standard
Summary judgment is appropriate when “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.” Fed. R.
Civ. P. 56(a). “A genuine issue is one that could be resolved
in favor of either party, and a material fact is one that has
the potential of affecting the outcome of the case.” Jakobiec
v. Merrill Lynch Life Ins. Co., 711 F.3d 217, 223 (1st Cir.
2013) (internal quotation marks omitted). When ruling on a
motion for summary judgment, the court must “view[] the entire
record ‘in the light most hospitable to the party opposing
summary judgment, indulging all reasonable inferences in that
party’s favor.’” Winslow v. Aroostook Cnty.,
736 F.3d 23, 29
(1st Cir. 2013) (quoting Suarez v. Pueblo Int'l, Inc.,
229 F.3d
49, 53 (1st Cir. 2000)). The movant may satisfy its burden by
showing “that there is an absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett,
477 U.S.
317, 325 (1986).
“The nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.” Sanchez-Rodriguez v. AT&T
Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (quoting
Iverson v. City of Bos.,
452 F.3d 94, 98 (1st Cir. 2006)).
Thus, “[c]onclusory allegations, improbable inferences, and
unsupported speculation, are insufficient to establish a genuine
dispute of fact.” Travers v. Flight Servs. & Sys., Inc.,
737
F.3d 144, 146 (1st Cir. 2013) (quoting Triangle Trading Co. v.
Robroy Indus., Inc.,
200 F.3d 1, 2 (1st Cir. 1999)). “Rather,
the party seeking to avoid summary judgment must be able to
point to specific, competent evidence to support his [or her]
claim.” Sanchez-Rodriguez,
673 F.3d at 9 (quoting Soto-Ocasio
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v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal
quotation marks omitted).
Background
Summarized favorably to Dyer, the pertinent facts are as
follows. On August 5, 2009, Dyer went shopping at the Target
store on Amherst Street in Nashua. While in the store, Dyer
decided to use the store’s restroom. Near the entrance to the
restrooms, Dyer slipped and fell to the floor. A customer came
over to assist Dyer and also alerted the employees at the
store’s service desk that Dyer had fallen. From where she lay
on the floor, Dyer could see the service desk.
The customer helped Dyer to her feet, at which point Dyer
saw a large puddle of water on the floor. Dyer did not see the
puddle prior to falling. The customer and a service desk
employee helped Dyer walk to the food service area, where a
store manager came over to speak with Dyer. The manager then
instructed an employee to clean up the water.
No Target employee either heard or saw Dyer’s fall. And,
Target concedes that no employee went into the restroom area in
the thirty minutes preceding Dyer’s fall.
Target claims that it trains all its employees to be
continually on the lookout for potentially dangerous conditions
in the store, such as a puddle of water on the floor. Target’s
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Sales Floor Training Guide provides that employees should look
for spills, and that, if they see one, they should not leave the
spill unattended. Target also has a policy of cleaning its
restrooms on an hourly basis.
Discussion
Target argues it is entitled to summary judgment because
Dyer cannot create a triable issue of fact on the question of
whether Target breached its duty of care. Dyer disagrees and
asserts that there are material facts in dispute on that element
of her claim. Dyer has the better argument.
Under New Hampshire law, “[t]he elements of negligence are
a breach of a duty of care by the defendant, which proximately
causes the plaintiff’s injury.” Weldy v. Kingston, 128 N.H.
325, 330 (1986).
[P]remises owners are governed by the test of
reasonable care under all the circumstances in the
maintenance and operation of their premises. A
premises owner owes a duty to entrants to use ordinary
care to keep the premises in a reasonably safe
condition, to warn entrants of dangerous conditions
and to take reasonable precautions to protect them
against foreseeable dangers arising out of the
arrangements or use of the premises. Accordingly,
under New Hampshire law, a premises owner is subject
to liability for harm caused to entrants on the
premises if the harm results either from: (1) the
owner’s failure to carry out his activities with
reasonable care; or (2) the owner’s failure to remedy
or give warning of a dangerous condition of which he
knows or in the exercise of reasonable care should
know.
4
Rallis v. Demoulas Super Mkts., Inc., 159 N.H. 95, 99 (2009)
(citations omitted).
Thus, to avoid summary judgment, Dyer must point to
evidence that would allow a reasonable jury to find that: (1)
Target failed to exercise reasonable care to prevent her
injuries, or (2) Target knew or should have known about the
puddle and failed to remedy or provide a warning of the
dangerous condition. Dyer’s case survives under both theories.
With respect to the first theory – the owner’s failure to
exercise reasonable care – there exists a dispute of material
fact about whether Target exercised reasonable care to prevent
Dyer’s injuries. On the one hand, it is not clear from the
record whether Target maintained or inspected the area near the
restrooms and service desk, where the puddle was located. On
the other hand, it is clear from the record that no Target
employee was in the area for thirty minutes before Dyer’s fall.
This evidence raises a question for the jury about whether
Target’s inattention to the restroom area for those thirty
minutes renders it more likely that a spill or puddle would go
undetected, and therefore that it was “reasonably foreseeable,”
Rallis, 159 N.H. at 101, that a person in the store could be
injured.
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With respect to the second theory of liability, plaintiff
can prevail if she can show that Target had “actual or
constructive notice of the dangerous condition.” Id. at 99.
The question of whether a store owner had actual or constructive
knowledge of a dangerous condition is generally a question of
fact for the jury. See
id. at 100.
Here, although there is no evidence that Target had actual
knowledge of the puddle, there is a dispute about whether
Target, in the exercise of reasonable care, should have known
about the puddle. Target points to the lack of any evidence
establishing the length of time that the puddle was on the floor
prior to Dyer’s fall. While length of time can be a significant
factor in the constructive notice analysis, it “is not . . . the
only way to prove constructive knowledge under New Hampshire
law.” Id. at 100. Here, it is undisputed that the service
desk, at which employees were stationed when Dyer fell, was in
close enough proximity for an employee to respond quickly to
assist Dyer after her fall. It is also undisputed that the
service desk is visible to someone in the area of the restrooms.
Thus, a trialworthy question exists regarding Target’s
constructive knowledge of the puddle.
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Conclusion
For the reasons detailed above, Target’s motion for summary
judgment (doc. no. 16) is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
October 17, 2014
cc: Harry M. Haytayan, Jr., Esq.
Meredith M. Lasna, Esq.
Sean J. Milano, Esq.
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