The opinion of the court was delivered by: Hon. Jerome B. Simandle
SIMANDLE, District Judge:
This matter is before the Court on Defendants Genuardi's Family Markets, L.P. and Safeway, Inc.'s (collectively "Defendants") Motion for Summary Judgment. [Docket Item 11.] The Defendants argue that their motion for summary judgment should be granted and the Plaintiff Lois Gabriel's ("Plaintiff") complaint should be dismissed with prejudice. The Plaintiff has filed opposition. The court held oral argument on November 4, 2011. For the reasons discussed below, this Court will deny the Defendants' motion for summary judgment.
The instant action is a personal injury suit arising from Plaintiff Lois Gabriel slipping and falling while shopping in the produce section of Defendant Genuardi's Family Market ("Genuardi's"). This Court has diversity jurisdiction under 28 U.S.C. § 1332(a)(1) and (c), and New Jersey law provides the rule of decision.
On or about 3:15 PM on September 23, 2008, the Plaintiff was shopping in the produce section of Genuardi's with her fiance, Joseph Cipolloni. (Pl.'s Ex. C, Deposition of Lois Gabriel ("Gabriel Dep.") at 44:3-9)). While shopping in the produce section, Plaintiff saw a stream of water and several grapes on the floor. (Gabriel Dep. at 44:9-12; 45:19-46:18.). The Plaintiff tried to step across the grapes and water on the floor; however, the Plaintiff was unsuccessful and slipped and fell while walking down the produce aisle. (Gabriel Dep. 52:17.) The parties dispute whether the Plaintiff slipped on the water, slipped on a grape or slipped on a combination of both. The Plaintiff sustained injuries as a result of her fall. (Gabriel Dep. 59:3-24.)
Approximately 17 minutes before the Plaintiff's slip and fall, Defendants' former employee, Noah Champoux, performed an inspection of the produce area and this area was marked as "clear." (Def.'s Ex. F, Genuardi's Inspection Log). This inspection was a formal procedure known as a floor walk which was conducted by Defendants' Customer Service Associates every hour throughout each area of the grocery store. (Def.'s Ex. G, Deposition of Maureen Bruckler ("Bruckler Dep.") at 14:2-12). The Customer Service Associates would walk a designated route with a probe and each route had magnetic sensors positioned throughout the store. (Bruckler Dep. at 14:13-15:2.) If a spill was detected on the floor walk, the employee was instructed to stay with the spill until it was cleaned up, even if this deterred their route. (Bruckler Dep. at 18:11-15.) Once an area was deemed clear, the Customer Service Associate on that route would touch their probe to the magnetic sensor which then logged the time of the inspection and that the area was clear. (Bruckler Dep. at 14:13-15:2.) A report of all the floor walk inspections is printed out by the Defendants on a weekly basis. (Bruckler Dep. at 19:5-14.) At 2:58 PM on September 23, 2008, approximately seventeen minutes prior to Plaintiff's fall, the scene was marked as clear by Customer Service Associate Noah Champoux on the generated report of the floor walk. (Def.'s Ex. G.)
The Plaintiff brought the instant action against the Defendants alleging negligence/premises liability. This case was initially filed in the Superior Court of New Jersey, Atlantic County Vicinage. The Defendants then removed the action to the District of New Jersey. [Docket Item 1]. After the case was removed, the parties submitted a joint discovery plan and exchanged discovery. [Docket Items 8 and 10.]
The Defendants then filed the instant motion for summary judgment. [Docket Item 11.] The Defendants argue that summary judgment is appropriate because there is no evidence that the Defendants breached their duty of care to the Plaintiff. The Defendants maintain that there was no actual notice of the hazardous condition of the grapes and water on the floor. In addition, the Defendants contend that negligence cannot be inferred because the Defendants could not reasonably anticipate that hazardous conditions would regularly arise simply from the Defendants' method or manner of doing business. Further, even if the inference of negligence should apply, the Defendants argue that the inference is rebutted because the Defendants took prudent and reasonable steps to avoid the potential hazard. Finally, the Defendants maintain that the Plaintiff saw the spill on the floor prior to her fall and consequently the Defendants should not be liable for an open and obvious danger. Therefore, the Defendants contend that their motion for summary judgment be granted.
The Plaintiff opposes Defendants' motion for summary judgment. First, the Plaintiff argues that the Defendants spoiled evidence by failing to disclose photographs taken of the produce section on the day of the accident. The Plaintiff next argues that discovery sanctions should be imposed on the Defendants for failing to produce a former employee, Noah Champoux, for a deposition or in the alternative, failing to disclose Mr. Champoux's last known address. In regards to the merits of the case, the Plaintiff argues that summary judgment is inappropriate because there are genuine issues of material fact with regard to whether the Defendants created the dangerous condition in the produce section or whether the Defendants mode of operation of its business creates an inference of negligence.
There are three distinct issues before the Court. First, the Court must determine whether a spoliation of evidence has occurred as a result of the Defendants' non-disclosure of the photographs of the produce section taken the day of the Plaintiff's fall. Second, the Court must analyze whether the Defendants violated their discovery obligations by failing to disclose the last known address of Noah Champoux, the Defendants' former employee who allegedly conducted the floor walk inspection of the produce section shortly before Plaintiff fell, and the Defendants' failure to produce Mr. Champoux for a deposition. If so, the Court must then address whether the Defendants will be permitted to rely on Mr. Champoux's Declaration or the Genuardi's Inspection Log which consists of data compiled by Mr. Champoux during his walkthrough of the produce section on September 23, 2008. Finally, the Court must then address the merits of whether summary judgment is appropriate in the instant action. The Court will address each of these issues separately below.
The Plaintiff argues that the Defendants took photographs of the scene and have failed to produce the photographs. The Plaintiff contends that the Defendants' failure is the result of spoliation of evidence and a negative inference should be drawn that the pictures would have been evidence of a negligently maintained or created condition attributable to the Defendants. In support of this argument, the Plaintiff attaches an email correspondence between counsel about the request for production of the photographs.
The Defendants argue against a negative inference and maintain that the photographs were not intentionally concealed or destroyed by the Defendants. Rather, the Defendants state that the photographs were not produced because they could not be located and, after a reasonable investigation, are unable to be found by the Defendants both at the corporate and the store level.
An unfavorable inference arises against a party when the party refuses or fails without explanation to produce evidence which would tend to throw light on the issues before the court. However, "it is well established that any inference only arises when the evidence was 'within the party's possession or control' and when the party actually suppressed or withheld the evidence." Meyers v. Wokiewicz, 50 Fed. Appx. 549, 554 (3d Cir. 2002) (citing Gumbs v. Int'l Harvester, Inc., 718 F.2d 88, 96 (3d Cir. 1983). Importantly, "no unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for." Gumbs, 718 F.2d at 96.
In this case, a spoliation inference would be inappropriate. There is no evidence that the Defendants actually suppressed or withheld the photographs at issue. The email correspondence relied on by the Plaintiff supports the Defendants' assertion that the photographs were lost and could not be found after a diligent inquiry and a good faith effort to locate them. The Third Circuit has clearly held that "no unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed."
Gumbs, 718 F.2d. at 96. Therefore, the Plaintiff's argument for a spoliation inference is without merit and will be denied.
However, while there is no inference, the Court will not foreclose the jury from receiving evidence about the nonexistence of these photos. The photos represent unique evidence of the scene taken on the day of the accident and were part of a file created by the Defendants. The remaining contents of the file has been exchanged in discovery and will be instrumental to trying the case. The Plaintiff may produce evidence to the jury that the absence of photographs from the Plaintiff's case in chief is not due to the Plaintiff's error but is the result of the unintentional loss of the photographs by the Defendants, but Plaintiff may not argue for a negative inference based upon these facts.
The Plaintiff next argues that the Defendants failed to produce Noah Champoux for a deposition despite Plaintiff's request. Further, the Plaintiff maintains that the Defendants did not provide the Plaintiff with Mr. Champoux's last known address. Therefore, the Plaintiff contends that the Defendants should not be permitted to rely upon the testimony of Mr. Champoux in this motion, which according to the Plaintiff includes Genuardi's Inspection Log and Mr. Champoux's Sweep Declaration.
The Defendants oppose this sanction and argue that they were not required to produce Mr. Champoux for a deposition. Specifically, the Defendants maintain that Mr. Champoux is a former employee and therefore not within the Defendants' custody or control. In addition, the Defendants argue that the Plaintiff did not request Mr. Champoux's deposition by a Notice of Deposition as required under the Federal Rules of Civil Procedure. Therefore, the Defendants maintain that they should be allowed to rely upon the Genuardi's Inspection Log and Mr. Champoux's Sweep Declaration. However, the Defendants do not address their failure to provide the Plaintiff with the last known address of Noah Champoux in their briefing.*fn1
The Defendants were required to provide the last known address of Noah Champoux to the Plaintiff and their failure to do so prior to filing their motion for summary judgment is subject to sanctions. As part of their initial disclosure, Defendants were required, "without awaiting a discovery request," to provide Plaintiff with both "the name and, if known, the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A). Rule 37(c)(1) provides "mandatory sanctions," Fitz, Inc. v. Ralph Wilson Plastics Co., 174 F.R.D. 587, 591 (D.N.J. 1997), if a party "fails to provide information or identify a witness as required by Rule 26(a)," unless the failure was harmless or excused by "substantial justification." Fed. R. Civ. P. 37(c)(1).
Defendants failed to include the last known address of Noah Champoux in their initial disclosures and now seek to rely upon his declaration, signed shortly after the accident while he was still in Defendants' employ, in support of their motion for summary judgment. In addition, the Defendants made no apparent effort to supplement their disclosures pursuant to Rule 26(e), Fed. R. Civ. P., until the day before oral argument was held on this motion. Further, the Defendants have likewise proposed no substantial justification for their failure of ...