United States District Court, N.D. California
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT Re: Dkt. No. 19
M. Ryu United States Magistrate Judge.
case arises out of a slip-and-fall incident that occurred in
a Target store on March 12, 2016. Plaintiff Joanne Biernacki
filed an action for negligence and premises liability against
Defendant Target Corporation (“Target”). Target
now moves for summary judgment. [Docket Nos. 19
(“Mot”), 27 (“Reply”).] Biernacki
opposes. [Docket No. 24 (“Opp.”).] The court held
a hearing on October 10, 2019.
consideration of the parties' briefing and oral
arguments, the court grants Target's motion.
factual background is taken from the deposition testimony of
Biernacki and two Target employees, Theresa Ruslender and
March 12, 2016, Beirnacki visited the Target store located at
4400 Towne Center Blvd. in El Dorado Hills, California.
[Docket No. 1, Ex. A (“Compl.”).] She was
accompanied by her four-year-old daughter. [Docket No. 19-1
(“Hamoy Decl., ”), Ex. 1 (“Biernacki
Depo.”) at 31:21.] The two arrived at the store
sometime between 9:00 and 11:00 a.m. Id. at 31:15.
entering the store, Biernacki obtained a shopping cart.
Id. at 34:5-7. She then walked through the main
entrance area and made a left turn. Id. at
34:23-25-35:1. Less than a minute later, she fell to the
ground. Id. at 35:4-9. Biernacki felt her right foot
“sliding on something” and her left foot
“going back behind [her].” Id. at
37:7-11. She stated that she “was literally doing the
splits . . . and there was nothing I could do to stop
it.” Id. at 37:7-11. At the moment Biernacki
was falling, she did not know why her foot was sliding.
Id. at 37:23-24. Once she had fallen to the ground,
she saw water on the floor to the front and left of her.
Id. at 38:2-10. The water was close enough that
Biernacki could touch it with her hand. Id. at
38:11-13. The pool of water was about three inches by one
inch across. Id. She did not see where the
water had come from and did not see any container or other
item that could be the source of the water. Id. at
38:14-18. She did not 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 employees were in the area. Id. at 39:8-11.
employee Theresa Ruslender was working in the cash register
area when Biernacki fell. Hamoy Decl., Ex. 3 (“Ruslender
Depo.”) at 45:14-23. Ruslender was “running . . .
back and forth” to make sure that customers were able
to check out properly, guiding guests to available checkout
lanes, and checking and putting items away. Id. at
35:6-9. She acknowledged that it was her responsibility to
check the aisle where Biernacki fell. Id. at 11-13.
She stated that Biernacki fell in the main aisle, between the
registers and the jewelry department, and that Ruslender was
two or three feet away from Biernacki at that time.
Id. at 47:4-7. Ruslender was not looking directly at
Biernacki when she fell, but she knew there was someone
“off [her] right shoulder” and she heard an
“ow.” Id. at 47:4-7, 14-23. Ruslender
saw Biernacki slipping “in [a] splitting motion”
before Biernacki went down on one knee and then fell to her
side. Id. at 91:9-20.
parties agree that Ruslender prepared an incident report
after the event. The report is referenced in both
parties' briefs as well as in Ruslender's deposition
testimony. However, the only incident report submitted into
evidence is attached to Fetto's declaration as Exhibit A,
and is signed by a “Teagan Friend,
” who is otherwise not mentioned by either
party. Neither party submitted Ruslender's report. As a
result, the evidentiary record is not as clear as it could
be. For example, Biernacki says that Ruslender's report
stated that there were “sanitary wipes” on the
floor in the area where Biernacki fell (Opp. at 3), but the
incident report attached to Fetto's declaration does not
reference “sanitary wipes.” See Fetto
Decl., Ex. A.
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” was on the floor. Id. at 33:17-22,
63:13-14. In her deposition, Ruslender testified that there
were actually two or three sanitary wipes on the floor at the
general scene of the incident. Id. at 63:6-18. She
also stated that there is a sanitary wipe dispenser at the
front of the store. Id. at 64:7-16. Although the
deposition testimony is not entirely clear on this point, it
appears that Ruslender agreed that the wipes she found on the
floor were of the same type as the ones that are distributed
at the front of the store. See Id. According to
Ruslender, the wipes “weren't in the area of where
[Biernacki] was on the floor.” Id. at
63:17-24. Ruslender testified that the wipes were “to
the left of [Biernacki's] cart” where her daughter
had just run, and were “in a trail to [Biernacki's]
daughter.” Id. at 51:1-2. Ruslender stated
that she believed the reason the sanitary wipes were on the
ground were because Biernacki's daughter was playing with
them and dropped them as she walked. Id. at
51:19-24. Ruslender said that she did not recall seeing the
daughter grab any wipes, nor did she recall seeing any wipes
in the daughter's hands. Id. at 86:3-6, 88:5-6.
testified that she had been walking back and forth in the
area and did not see any sanitary wipes on the ground before
Biernacki fell. Id. at 45:24-25-46:1, 13-14. She
stated that she would have noticed if something had been left
on the floor. Id. at 46:2-4. Ruslender testified
that there is no store procedure for keeping “sweep
logs” to record how often the floor stores are swept,
except for the restrooms. Id. at 46:16-24. Ruslender
testified that two other employees came over after Biernacki
fell and she showed them the sanitary wipes. Id. at
49:1-5. She said that they did not say anything to her about
it. Id. at 49:6-8.