United States District Court, D. New Hampshire
Jennifer J. Dyer,
ORDER Opinion No. 2014 DNH 220.
LANDYA McCAFFERTY, District Judge.
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 v. Fed. Ex. Corp. , 150 F.3d 14, 18 (1st Cir. 1998)) (internal quotation marks omitted).
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 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.
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 ...