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Biernacki v. Target Corp.

United States District Court, N.D. California

October 28, 2019



          Donna M. Ryu United States Magistrate Judge.

         This 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.

         Upon consideration of the parties' briefing and oral arguments, the court grants Target's motion.


         The factual background is taken from the deposition testimony of Biernacki and two Target employees, Theresa Ruslender and Megan Mendenhall.

         A. Biernacki's Testimony

         On 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.

         Upon 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.[1] 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.

         B. Ruslender's Testimony

         Target employee Theresa Ruslender was working in the cash register area when Biernacki fell.[2] 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.

         The 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, ”[3] 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.

         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” 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.

         Ruslender 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.

         C. ...

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