Quraishi v. Port Auth. of N.Y. & N.J.
Quraishi v. Port Auth. of N.Y. & N.J.
2015 WL 3815011 (S.D.N.Y. 2015)
June 18, 2015
Buchwald, Naomi R., United States District Judge
Summary
The court found that the defendants had a duty to preserve additional surveillance footage preceding the plaintiff's accident, but failed to do so. This constituted gross negligence, and the court awarded a permissive adverse inference instruction as a result. The ESI in this case was important because it could potentially show the act of the spill itself, the time the spill occurred, or that the area was inspected within a reasonable period before Plaintiff's fall.
Fiza QURAISHI, Plaintiff,
v.
The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Bombardier Transportation (Holdings) USA, Inc., Capital Contractors, Inc., and North Mountain Contractor's Inc., Defendants
v.
The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Bombardier Transportation (Holdings) USA, Inc., Capital Contractors, Inc., and North Mountain Contractor's Inc., Defendants
No. 13 Civ. 2706(NRB)
Signed
June 17, 2015
Filed June 18, 2015
Counsel
Edwin Sivin, Esq., Sivin & Miller, LLP, New York, NY, for Plaintiff.David I. Robinson, Esq., Law Office of Andrea G. Sawyers, Melville, NY, for Defendants Port Authority, Bombardier, and Capital.
Keith S. Grover, Esq., Frank Raia, Esq., Eric Struber, Esq., Rivkin Radler LLP, Uniondale, NY, for Defendant North Mountain.
Buchwald, Naomi R., United States District Judge
MEMORANDUM AND ORDER
*1 Plaintiff Fiza Quraishi (“Quraishi”) brings this action against the Port Authority of New York and New Jersey (“Port Authority”), Bombardier Transportation (Holdings) USA, Inc. (“Bombardier”), Capital Contractors, Inc. (“Capital”), and North Mountain Contractor's Inc. (“North Mountain”), seeking to recover for damages sustained in a slip and fall at the Air Train Terminal at John F. Kennedy International Airport (“JFK”). Quraishi has moved for sanctions against Port Authority and Bombardier as a result of their alleged failure to preserve relevant surveillance video footage, and defendants have cross-moved for summary judgment. For the reasons stated herein, Quraishi's motion for sanctions is granted, North Mountain's and Capital's motions for summary judgment are granted, and Bombardier's and Port Authority's motions for summary judgment are denied.
I. Factual Background
Port Authority is the lessee of the Federal Circle Air Train Terminal (the “Terminal”) at JFK. Pl. 56.1 ¶ 1. The Terminal is operated and managed by Bombardier pursuant to a contract with Port Authority. Id. ¶ 2. Bombardier contracts with Capital to perform cleaning services for the Terminal, which are in turn subcontracted to North Mountain. Id. ¶¶ 2–3.
On July 30, 2012, Quraishi, accompanied by her husband and infant daughter, prepared to fly home out of JFK. Deaf. 56.1 ¶ 1; Quraishi Deep'n at 17–19. After returning a car they had rented, the three exited an elevator on the third floor of the Terminal at around 3:30 in the afternoon. Deaf. 56.1 ¶ 1; Quraishi Deep'n at 18–19. “[I]n a rush to get to the flight,” Quraishi's husband exited the elevator first and Quraishi followed, pushing a stroller and holding her daughter in a baby carrier on her chest. Deaf. 56.1 ¶ 2; Quraishi Deep'n at 18, 20. She also carried a backpack on her back. Quraishi Deep'n at 21. Quraishi had taken few steps when her husband informed her that a train was arriving, and she picked up her pace to catch the train. Deaf. 56.1 ¶ 2; Quraishi Deep'n at 24–25; Haq Deep'n at 20.
Quraishi subsequently fell a few steps beyond the elevator. She fell onto her back, leaning to her right side on the ground. Quraishi Deep'n at 72. In doing so, she hurt her ankle badly, such that it was “facing the wrong way.” Id. at 29. Upon hearing Quraishi scream, her husband rushed to her aid and called out to an Air Train employee standing a few feet away. Id. at 28.
While lying on the ground, Quraishi noticed a “puddle” of brown liquid, the color of coffee or soda, on the floor near her. Deaf. 56.1 ¶ 3. She also noticed, upon lifting up her foot, that the bottom of her pants were wet. Quraishi Deep'n at 29, 72. According to her husband, the pooled brown liquid occupied an area “at least two feet, several feet long, and the pooled amount appeared to me to be just a fraction of what must have been there originally, because I could see streaks next to it, and I could see droplets next to it, and I could also tell because my wife's pant leg and shoe were wet, that there was more liquid than what had remained.” Haq Deep'n at 25. Neither Quraishi nor her husband had previously seen the liquid on the ground, complained about the spill, or knew how it came to be on the floor. Deaf. 56.1 ¶¶ 9–11. In particular, Quraishi was not carrying a beverage or liquid at the time of the accident. Pl. 56.1 ¶ 9; Quraishi Deep'n at 29–30. There was no debris in or near the spill. Deaf. 56.1 ¶ 6.
*2 Upon hearing Quraishi scream and her husband call out, Yesenia Rodriguez, an Air Tran Agent employed by Bombardier, came to Quraishi's assistance. Pl. 56.1 ¶ 10; Haq Deep'n at 27; Rodriguez Deep'n at 18. As an Air Train Agent, Rodriguez was required to walk back and forth on the train platform to direct passengers and look for debris and spills.[2] Id. Assigned to the Federal Circle inbound platform for the afternoon of July 30, 2012, Rodriguez had attended a “briefing” session with her supervisors at three o'clock and had arrived on the platform a minimum of two to five minutes immediately preceding the accident. Deaf. 56.1 ¶ 12; Pl. 56.1 ¶ 5; Rodriguez Deep'n at 6. She testified that she had not yet checked the third level for spills on the floor and that, while she typically spoke to the person on the preceding shift to note anything of concern on the platform, she could not specifically recall whether she had spoken to someone, as it was possible that there had not been an agent on the inbound-platform shift before her. Rodriguez Deep'n at 19, 52–54. She estimated that she was standing about seventy feet from the accident when it occurred. Id. at 17.
Rodriguez approached Quraishi and, seeing her injury, called a “red alpha” to receive emergency assistance. Id. at 28. Quraishi's husband then directed Rodriguez's attention to the liquid on the ground. Id. at 29. Rodriguez observed a coffee-colored spill approximately two feet from where Quraishi lay, as well as additional coffee-colored spills inside and outside a passenger elevator located about three feet from where Quraishi fell .[3] Pl. 56.1 ¶ 11. She did not attempt to determine how long the liquid had been on the ground. Rodriguez Deep'n at 31.
Several minutes later, Port Authority police officers responded to the scene of the accident and Quraishi was taken by ambulance to Jamaica Hospital. Quraishi Deep'n at 37. As Quraishi was being moved to a stretcher and a janitor arrived to clean up the spill, Quraishi's husband took a cell phone picture of the spill, which shows tracks of transparent brown liquid. Quraishi Deep'n at 31–32; Sivin Decl., Ex. 4.
Port Authority owned, and Bombardier operated and maintained, a video surveillance system that recorded the accident and surrounding area. Pl's 56.1 ¶ 14. Sidney Dimanche, a systems assurance manager at Bombardier, reviewed footage from that video surveillance system shortly after plaintiff's accident. Id. 15; Dimanche Deep'n at 5. He generated a timeline of events based upon the incident report and the camera footage. Dimanche Deep'n at 36; Sivin Decl., Ex. 6. Port Authority and Bombardier also created incident reports for the accident. Sivin Decl., Ex. 5; Id., Ex. 7. However, Port Authority's report left blank the section that asked when and by whom the area was last cleaned and inspected.
Surveillance footage of the eight minutes preceding Quraishi's fall shows twenty-two people walking past the area where she fell, none of whom fall, slip, or appear to make any movements to avoid the area.[4] In addition, no liquid can be seen on the floor in the videotape, and none of these individuals who traverse the area can be seen spilling anything onto the floor. Quraishi agrees that one cannot see anything on the tape that would have caused her fall, but suggests that any lack of visibility is due to the video's dim lighting and shadows. Quraishi Deep'n at 80.
*3 Thirty-five days after the incident, Port Authority received a letter from plaintiff's counsel, dated August 30, 2012, requesting that video footage for the entire day of July 30, 2012 be preserved and informing Port Authority that a failure to so preserve would result in plaintiff seeking spoliation sanctions.[5] Pl. 56.1 ¶ 18; Sivin Decl., Ex. 8. This letter was reviewed by a Port Authority attorney. Pl. 56.1 ¶ 19.
II. Procedural Background
Quraishi filed a complaint on April 24, 2013, seeking damages for negligence, negligent hiring, and breach of contract.[6]Port Authority, Bombardier, and Capital answered on June 10, 2013, and North Mountain answered on July 23, 2013.
On September 12, 2013, Port Authority provided Quraishi with a DVD containing eight minutes of footage immediately preceding her accident and forty minutes immediately following the accident. Pl's 56.1 ¶ 20; Sivin Decl., Ex. 10. The DVD contains footage from four cameras during the specified 48–minute period. The first clip shows the passenger elevator bank and the interior of one elevator. The second clip shows a long view of the platform leading back to the elevator bank. The third clip shows the center of the platform (essentially 180 degrees from the second camera). Finally, the fourth clip shows the interior of the elevator in which Rodriguez found a spill similar to that by Quraishi.
On November 5, 2013, the Court held a conference to discuss the surveillance video. At the conference, defense counsel stated that he had been told that the surveillance tapes looped over after thirty days, and that the 48–minute videotape was the only video that was saved, in anticipation of litigation. We instructed parties to proceed with discovery, including any further discovery related to the preservation of video footage.
On June 6, 2014, Quraishi deposed Sidney Dimanche from Bombardier. According to plaintiff's counsel, defense counsel represented that “Mr. Dimanche was the individual from whom he obtained the information that he conveyed to this Court regarding the preservation of the video footage, and that Mr. Dimanche was the person who physically retrieved and preserved the footage that was produced to plaintiff.” Sivin Decl., Ex. 12. Mr. Dimanche's deposition, however, was less than informative. For instance, he did not know who had made the DVD of the 48–minute footage, who had told that person to make the DVD, and/or why either person had chosen to keep only eight minutes of footage prior to the accident. Dimanche Deep'n at 43, 51–52, 57. He did not know “the capabilities of the surveillance system in terms of how far one could go back and check on an event,” id. at 33, had not contacted anyone or made any attempt to discover whether additional footage from July 30, 2012 still existed, and did not know if anyone else at Bombardier had investigated the incident or had attempted to discover whether additional footage still existed. Id. at 47, 72. He also testified that he had never told anyone that the video footage only went back thirty days, and that it was not his understanding that there was such a thirty-day limitation. Id. at 33–34, 68. Finally, he testified that, as far as he knew, there was no policy at Bombardier regarding how much footage should be preserved following an accident, nor any policy regarding the preservation of video footage whatsoever. Id. at 58, 60.
*4 Quraishi also sent defendants two sets of interrogatories in connection with the lost surveillance footage. In Port Authority's, responses to these interrogatories, Sivin Decl., Ex. 17, it stated that it “cannot positively identify any steps taken to contact Bombardier” in response to counsel's letter of August 30, 2013, and that it “does not have any ... policy in place” “concerning the retention or preservation of videotapes or surveillance footage that might be relevant to future litigation,” Sivin Decl., Ex. 16. In Bombardier's responses, Sivin Decl., Ex. 15, it stated that it could not identify the individual who had preserved the footage or any individual who had participated in the operation of the surveillance system on the day of the accident. It also provided as a rationale for the video's time duration that Bombardier had saved footage from “the time the customer walked into the building until the time the customer left the building, per usual and customary standard ‘best practices,’ “ and it stated that the footage “was preserved ... per usual practice when there is a customer incident”; however, it acknowledged that it “does not have a written policy regarding retention practices” but rather has “a ‘best practices' standard procedure of retaining video surveillance when there is a customer incident.” Finally, it explained that “[f]ootage is preserved on a ‘storage array network’ or ‘SAN’ [which] is sufficient for a minimum of 60 days to be preserved, with approximately 10% of extra space,” and confirmed that the additional footage no longer exists.
On February 6, 2015, Quraishi filed a motion for spoliation sanctions against Port Authority and Bombardier as a result of the failure to preserve additional surveillance footage preceding Quraishi's accident. This motion was fully briefed on March 27, 2015. Port Authority, Bombardier, and Capital filed a subsequent motion for summary judgment on March 9, 2015, which was fully briefed on April 6, 2015. Finally, North Mountain moved for summary judgment on March 10, 2015, which Quraishi does not oppose.
I. Motion for Spoliation Sanctions
A party seeking sanctions for spoliation or destruction of evidence must establish three elements: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the evidence was destroyed “with a culpable state of mind;” and (3) that the destroyed evidence was “relevant” to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Skyline Steel, LLC v. PilePro, LLC, 13 Civ. 8171(JMF), 2015 WL 1881114, at *11 (S.D.N.Y. Apr. 24, 2015) (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002)); Farella v. City of New York, 05 Civ. 5711(NRB), 2007 WL 193867, at *2 (S.D.N.Y. Jan. 25, 2007). We address each element in turn below.
A. Duty to Preserve
*5 A duty to preserve evidence “arises when ‘the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.’ “ Slovin v. Target Corp., 12 Civ. 863(HB), 2013 WL 840865, at *3 (S.D.N.Y. Mar. 7, 2013) (citing In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 148 (2d Cir.2008)). The point at which a party can be said to be on notice varies with the circumstances of the case. See Simoes v. Target Corp., 11 Civ.2032 DRH WDW, 2013 WL 2948083, at *3 (E.D.N.Y. June 14, 2013) (“When a party may be deemed to be on notice is a function of the variable chronologies along which issues develop in a law suit.”). “Once the duty to preserve evidence attaches,” however, “a party must save any evidence that it ‘reasonably should know is relevant’ to an anticipated action.” Taylor v. City of New York, 293 F.R .D. 601, 611 (S.D.N.Y.2013).
Here, there is little question that defendants[7] had an obligation to preserve evidence as of the time of Quraishi's accident, as courts have consistently found defendants put on notice by a serious accident or injury occurring on their premises. See, e.g., Rodgers v. Rose Party Functions Corp., 10 Civ. 4780(MKB), 2013 WL 6002375, at *2 (E.D.N.Y. Nov. 12, 2013) (“[W]hen a plaintiff sustains a serious injury on defendants' premises, ‘there can be little doubt that, at the time of the accident, Defendants could have expected Plaintiff to file a lawsuit.’ ”); Slovin, 2013 WL 840865, at *3 (“[C]ommunications [from counsel are] simply icing on the cake, since the obligation arose at the time of the accident.”); Matteo v. Kohl's Dep't Stores, Inc., 09 Civ. 7830(RJS), 2012 WL 760317, at *3 (S.D.N.Y. Mar. 6, 2012), aff'd, 533 F. App'x 1 (2d Cir.2013). Nevertheless, defendants argue that they fulfilled this duty by preserving the 48–minute videotape produced to Quraishi. Quraishi, by contrast, asserts that defendants' obligation extended to preserving video footage from earlier in the day.
We find that defendants were obligated to preserve more than eight minutes of footage before Quraishi's fall, as such footage could have established the origin of the spill, for how long it had been on the floor before plaintiff's arrival, and/or if any employees had seen it, rendering the additional footage evidence defendants “reasonably should know is relevant to an anticipated action.” Numerous courts have confirmed defendants' duty to preserve such additional prior footage as relevant evidence. See, e.g., Slovin, 2013 WL 840865, at *3 (finding duty to preserve more than three clips of the period immediately before, during, and after the plaintiff's fall that totaled only two minutes, “because the video would have shown the events leading up to [the] accident, which might have been relevant”); Simoes, 2013 WL 2948083, at *4 (“Target should have reasonably known that any evidence pertaining to the conditions of the area in question and the source of that liquid would be relevant to future litigation. Such evidence would include video preceding the fall itself.”); Taylor, 293 F.R.D. at 611 (finding duty to preserve more than two four-minute clips of surveillance depicting assault on incarcerated plaintiff, because any evidence of prison's treatment of plaintiff, including three preceding hours of surveillance, would have been relevant); Usavage v. Port Auth. of N.Y. & N.J., 932 F.Supp.2d 575, 591, 10 Civ. 8219(JPO), 2013 WL 1197774, at *10 (S.D.N.Y. Mar. 26, 2013) (acknowledging that, while the duty to preserve video surveillance does not include “all footage,” it does encompass the preservation of all “potentially relevant footage” ). Indeed, even if defendants were not aware that video footage preceding the fall would have been relevant to litigation and should have been preserved, counsel's letter explicitly requesting preservation of footage for the day—received at least twenty-five days before any routine destruction of footage—should have alerted them to this obligation. Accordingly, we find that defendants had a duty to preserve additional surveillance footage preceding Quraishi's accident and that they failed to do so.
B. Culpability
*6 “[T]he failure to produce evidence is properly evaluated along a ‘continuum of fault,’ and acting knowingly or negligently is sufficient to establish culpability” warranting a spoliation sanction. Rodgers, 2013 WL 6002375, at *2 (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir.2002)). Once a duty to preserve evidence arises, any destruction of that evidence is, at a minimum, a negligent act. Id. at *3 (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y.2003)). Whether a defendant who has failed to preserve evidence has acted with negligence, gross negligence, or bad faith is a factual determination to be made by the court in light of all the circumstances. Chin v. port Auth. of New York & New Jersey, 685 F.3d 135, 162 (2d Cir.2012).
In evaluating whether a defendant's failure to preserve is rightly characterized as merely or grossly negligent, the Second Circuit has held that the failure to institute a litigation hold alone will not constitute gross negligence, but should instead be considered “as one factor in the determination of whether discovery sanctions should issue.” Id. Courts have thus held that parties acted with gross negligence where they did not merely fail to preserve documents from routine destruction but also, for instance, authorized non-automatic destruction of documents, Hawley v. Mphasis Corp., 302 F.R.D. 37, 50–51 (S.D.N.Y.2014), or made a conscious decision to save only certain evidence from routine destruction, Slovin, 2013 WL 840865, at *3 (“[E]ven if Target had initially preserved only two minutes of the video, its subsequent decision to destroy the test of the video indicates, at minimum, gross negligence .... [B]efore any routine recycling, Target knew that the information contained in the video would be crucial to its liability and damages, yet chose to preserve only the segment that shows [plaintiff] entering and then falling, as if the dispute would be limited to whether the accident happened at all ....”). Several cases also suggest that a defendant who fails to take any action in anticipation of clearly foreseen litigation may evince such a lack of diligence as to merit a finding of gross negligence. See, e.g., Riley v. Marriott Int'l, Inc., 12 Civ. 6242 P, 2014 WL 4794657, at *6 (W.D.N.Y. Sept. 25, 2014) (gross negligence where defendant “fail[ed] to provide the Court with any sworn facts from persons with knowledge of the destruction of the challenged evidence[,] demonstrat[ing] such a lack of diligence that it suggests bad faith destruction”); SJS Distribution Sys., Inc. v. Sam's E., Inc., 11 Civ. 1229 WFK RML, 2013 WL 5596010, at *4 (E .D.N.Y. Oct. 11, 2013) (gross negligence where plaintiff “never issued a formal litigation hold ..., despite admitting familiarity with its obligation to preserve documents in the event that litigation seems likely” and “fail[ed] to take the most basic document preservation steps”); Treppel v. Biovail Corp., 249 F.R.D. 111, 121 (S.D.N.Y.2008) (gross negligence where court decision and letter from counsel made clear defendants' obligation to preserve backup tapes, but defendant took no steps to preserve).
*7 Here, we find that defendants' failure to make any effort to preserve additional footage warrants a finding of gross negligence. Defendants deliberately chose to retain only eight minutes of footage preceding the accident, as per Bombardier's practice of retaining only the time the plaintiff is in the bulding, even though additonal potentially relevant footage was avilable. Despite their obligation to preserve additional footage and, more importantly, despite receiving and reviwing a letter from counsel specifically requesting retention of additional footage weeks in advance of the footage being taped over, defendants took no steps whatsoever to preserve the additional footage. Further, they offer no explanation for their failure to contact anyone or take any steps regarding the preservation of footage after receiving counsel's letter, and when eventually forced to account for the surveillance footage, provided a deposition witness with absolutely no knowledge of the relevant facts. As in Riley, we find this level of inaction goes beyond mere failure to enact a litigation hold, “demonstrat[ing] such a lack of diligence that it suggests bad faith destruction” and elevates defendants' culpability to gross negligence.
C. Relevance
Relevance in the spoliation context “means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence. Rather, the party seeking an adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed [or unavailable] evidence would have been of the nature alleged by the party affected by its destruction.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 109 (2d Cir.2002). When evidence is destroyed in bad faith, that fact alone is sufficient to demonstrate relevance. By contrast, when the destruction is merely negligent, relevance must be proven through extrinsic evidence by the party seeking the sanctions. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431 (S.D.N.Y.2004). A showing of gross negligence, in turn, may suffice to support a finding that the evidence was unfavorable to the grossly negligent party. Residential Funding, 306 F.3d at 109. Finally, when considering negligent or grossly negligent destruction, “[c]ourts must take care not to ‘hold[ ] the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence,’ because doing so ‘would subvert the ... purposes of the adverse inference, and would allow parties who have ... destroyed evidence to profit from that destruction.’ “ Id.
In opposition to Quraishi's motion, defendants primarily argue that the motion must fail because Quraishi cannot establish what the lost footage would have shown and therefore cannot establish that it would have been favorable to her. They rightly note that the footage was just as likely—if not more likely—to have proven beneficial to defendants[8]: because the angle and glare of the camera make it impossible to identify liquid on the floor in even the footage that was preserved, additional prior footage could directly advance Quraishi's claim only if it depicted the act of the spill itself; the lost footage could just as easily show that the spill occurred moments before the saved footage begins or that the area was inspected within a reasonable period before Quraishi's fall.
*8 As Quraishi herself concedes, defendants are correct that she cannot prove that the footage would have supported her claims.[9] Quraishi's failure to prove relevance through extrinsic evidence, however, need not doom her motion: because we have found that Bombardier and Port Authority acted with gross negligence, we will presume that the lost footage would have been sufficiently relevant to have warranted sanctions. See, e. g., In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 200 (S.D.N.Y.2007) aff'd sub nom. Gordon Partners v. Blumenthal, 02 Civ. 7377(LAK), 2007 WL 1518632 (S.D.N.Y. May 17, 2007) (“[P]laintiffs have demonstrated that defendant['s] failure to preserve documents and ESI relevant to plaintiffs' allegations was at a minimum grossly negligent.... Thus, no extrinsic proof of relevance is necessary, and the Gordon plaintiffs are entitled to an adverse inference spoliation instruction.”); Dorchester Fin. Holdings Corp. v. Banco BRJ S.A., 304 F.R.D. 178, 184 (S.D.N.Y.2014) (“Because Dorchester's destruction of Morrow's computer and the data it contained was at least grossly negligent, the Court assumes that the lost data was relevant to BRJ's defense.”).
D. Appropriate Sanctions
A district court has broad discretion in crafting a proper sanction for spoliation to serve “the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999). The sanction should be designed to: “(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore ‘the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’ “ Id. (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998)). In determining the appropriate sanction, a court should strive to “impose the least harsh sanction which would serve as an adequate remedy; the range of sanctions, from the least harsh to the harshest, include further discovery, cost-shifting, fines, special jury instructions, preclusion, entry of default judgment, and dismissal.” Slovin, 2013 WL 840865, at *6.
Quraishi seeks stringent sanctions in the form of striking defendants' answer or an adverse inference instruction to the jury “that the jury should—or at the very least may—presume that the deleted surveillance footage would have supported plaintiff's version of events.” Pl. Br. at 21. She also seeks an award of attorney's fees in connection with the spoliation motion.
Given that defendants did save some footage preceding the incident, that they have been found only grossly negligent in failing to preserve the additional footage, and that Quraishi has not presented direct evidence of bad faith destruction,[10] we decline to impose such severe sanctions as striking defendants' answer or requiring the jury to accept plaintiff's version of events. Rather, we find that that a permissive, rather than mandatory, adverse inference instruction “will satisfy both the punitive and remedial purposes of adverse inference sanctions by punishing [defendants] for [their] culpable destruction of the evidence and by restoring the ‘prejudiced party to the same position ... that it would have held if there had been no spoliation,” Henkel Corp. v. Polyglass USA, Inc., 194 F.R.D. 454, 457 (E.D.N.Y.2000), while at the same time leaving open “whether a reasonable trier of fact actually will draw the inference put forth by Plaintiff [a]s a matter left for trial,” Taylor v. City of New York, 293 F.R.D. 601, 616 (S.D.N.Y.2013) (alterations omitted). See also, e.g., Pastorello v. City of New York, 95 Civ. 470(CSH), 2003 WL 1740606, at *14 (S.D.N.Y. Apr. 1, 2003) (finding grossly negligent failure to preserve warranted permissive adverse inference); Slovin, 2013 WL 840865, at *6 (declining to “strike Target's answer or preclude the use of video excerpts and photographs, which are drastic remedies that ‘should be imposed only in extreme circumstances,’ “ where Target was found to be grossly negligent, and instead awarding adverse inference instruction).
*9 Thus, the Court will instruct jurors that they may, but are not required to, find that additional surveillance footage would have shown that the brown liquid existed on the ground for a sufficient period of time for defendants to have discovered and cleaned or otherwise remedied it. Because we believe this instruction is sufficient to advance “the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine,” we decline to impose additional sanctions and deny Quraishi's request for attorney's fees.
II. Motions for Summary Judgment
A. Legal Standards
A motion for summary judgment is appropriately granted when “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). When making this determination, “the Court is required to resolve all ambiguities and draw ail permissible factual inferences in favor of the party against whom summary judgment” is sought. Winfield v. Trottier, 710 F.3d 49, 52 (2d. Cir.2013) (internal quotation mark omitted). On a motion for summary judgment, “[t]he moving party bears the initial burden of demonstrating ‘the absence of a genuine issue of material fact.’ “ FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where that burden is carried, the nonmoving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact,” id., which is “more than simply show[ing] that there is some metaphysical doubt as to the material facts[,] and may not rely on conclusory allegations or unsubstantiated speculation.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011) (internal quotation marks and citations omitted).
Where, as here, a defendant moves for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if it can point to an absence of evidence to support an essential element of the nonmoving party's claim. Goenaga v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); see also Cruz v. Target Corp., 13 Civ. 4662(NRB), 2014 WL 7177908, at *3 (S.D.N.Y. Dec. 17, 2014); Doona v. OneSource Holdings, Inc., 680 F.Supp.2d 394, 401 (E.D.N.Y.2010) (granting summary judgment to defendant in slip-and-fall case where plaintiff presented no evidence of actual or constructive notice).
“Under New York law, to state a prima facie case of negligence in a slip and fall action, plaintiff must demonstrate that defendant created the offending condition or that defendant had actual or constructive notice of the condition.” Gonzalez v. K–Mart Corp., 585 F.Supp.2d 501, 503 (S.D.N.Y.2008). A defendant is aware of a condition “if it has either created the condition or has received reports or complaints [from others] about the condition.” Castellanos v. Target Dep't Stores, Inc., 12 Civ. 2775(GWG), 2013 WL 4017166, at *4 (S.D.N.Y. Aug. 7, 2013). A defendant has constructive notice of a condition where the condition is “visible and apparent and ... exist [s] for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.” Antonelli v. Wal–Mart Stores, Inc., 216 F.3d 1071 (2d Cir.2000).
B. Port Authority's, Bombardier's, and Capital's Joint Cross–Motion for Summary Judgment
*10 In support of their motion, Port Authority, Bombardier, and Capital contend that Quraishi has failed to produce any evidence establishing that defendants caused the liquid to be on the floor, actually knew that it was on the floor, or had constructive notice that it was on the floor. In particular, they assert that Quraishi “cannot proffer any evidence as to how the spill was created, how long it existed, or that it existed for any appreciable length of time,” Def. Br. at 9, and they note that the existing surveillance footage shows over twenty people traversing the area where Quraishi fell without incident and without appearing to look down or avoid the area, id. at 8. See also id. at 9 (“There is also no evidence that any employee or customer, including plaintiff, observed the spill at any time before the accident. Thus ... the liquid, whatever it was, could have been spilled just second[s] prior to plaintiff's accident.”). Accordingly, they argue, Quraishi cannot demonstrate that defendants knew or had notice of the spill and, having failed to meet her burden of showing a genuine issue of material fact, her claims must be dismissed.
Quraishi counters that notice can be inferred from several facts currently in evidence. First, she cites the size and extent of the spill, noting that the brown liquid could be found covering several feet of the floor and extending into the passenger elevator, rendering it large enough to have been noticed by an Air Train employee patrolling the platform and exercising care to maintain the premises. Pl. Opp'n at 5. Similarly, she argues that the proximity of Rodriguez-who was on the platform looking for spills and was close enough to arrive almost immediately after Quraishi's scream-and the constant patrolling of Air Train employees supports an inference that Rodriguez or an Air Train employee should have seen such a spill. Id. at 5–6. Finally, she observes that no one can be seen spilling a liquid, drinking a beverage, or even carrying a beverage in the eight-minute clips, which could reasonably lead one to infer that the liquid had been spilled more than eight minutes before Quraishi's fall.[11] Id. at 7. Considered in conjunction with the size of the spill and the supervision of Air Train employees, this fact, Quraishi argues, could permit a jury to find that sufficient time had elapsed for defendants to have discovered and cleaned the evident spill.
On their own, these facts are not sufficient to withstand the motion for summary judgment. In particular, Quraishi remains unable to demonstrate the length of time the liquid was on the ground, even assuming it was spilled before the eight minutes of surveillance footage, and therefore remains unable to prove that defendants knew or had sufficient notice of the spill, a failure ultimately fatal to such claims. Cf., e.g., Lacey v. Target Corp., 13 Civ. 4098(RML), 2015 WL 2254968, at *6 (E.D.N.Y. May 13, 2015) (dismissing claims where, notwithstanding evidence that apple pieces on which plaintiff slipped were oxidized and therefore arguably on the ground for some time, plaintiff could not establish the length of time the pieces were on the ground); Casiano v. Target Stores, 06 Civ. 6286(NG), 2009 WL 3246836, at *4 (E.D.N.Y. Sept. 24, 2009) (“Because [plaintiff and her husband] did not notice the puddle [before slipping] and because plaintiffs have provided no evidence regarding for how long the detergent had been on the floor, ‘it would be speculative to infer that [the detergent] had been on the floor for an appreciable length of time.’ ”).
*11 Nevertheless, “[i]n borderline cases, an inference of spoliation, in combination with ‘some (not insubstantial) evidence’ for the plaintiff's cause of action, can allow the plaintiff to survive summary judgment.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir.2001). See also Kronisch v. United States, 150 F.3d 112, 128 (2d Cir.1998) (“We do not suggest that the destruction of evidence, standing alone, is enough to allow a party who has produced no evidence—or utterly inadequate evidence—in support of a given claim to survive summary judgment on that claim. But at the margin, where the innocent party has produced some (not insubstantial) evidence in support of his claim, the intentional destruction of relevant evidence by the opposing party may push a claim that might not otherwise survive summary judgment over the line.”) (internal citation omitted). Thus, while Quraishi has not adduced sufficient evidence of notice to independently withstand summary judgment, the facts she cites are “some evidence” that, in combination with the spoliation inference, suffice to allow her to proceed to trial as against Port Authority and Bombardier.
As against Capital, however, no sanction has been sought or awarded. Accordingly, having found that Quraishi's claims do not survive in the absence of an adverse inference, we grant Capital's motion for summary judgment.
C. North Mountain's Motion for Summary Judgment
North Mountain has independently moved for summary judgment, arguing that, as subcontractor of Capital, it “did not owe a duty of care to Quraishi or a duty of reasonable care independent of its contractual obligation to Capital.” Br. at 1. Quraishi has not opposed this motion. Accordingly, North Mountain's motion is granted.
For the foregoing reasons, the motion for sanctions is granted and the motions for summary judgment are granted as to Capital and North Mountain and denied as to Port Authority and Bombardier. Now that the pending motions have been decided, this Court will refer the case to Magistrate Judge Cott for settlement. The parties are expected to participate in settlement discussions in good faith. This Memorandum and Order resolves Docket Nos. 22, 27, and 34.
Footnotes
The facts recited here are drawn from the following sources: (1) the complaint filed April 24, 2013; (2) the Declaration of Edwin Sivin in Support of Plaintiff's Motion for Sanctions for Spoliation of Evidence (“Sivin Decl.”), and the exhibits attached thereto, including Quraishi's deposition (“Quraishi Dep'n”), the transcript of Adil Hag's deposition (“Hag Dep'n”), the transcript of Yesenia Rodriguez's deposition (“Rodriguez Dep'n”), and the transcript of Sidney Dimanche's deposition (“Dimanche Dep'n”); (3) Defendants' Statement of Facts Pursuant to Rule 56.1 (“Def.56.1”); and (4) Plaintiff's Response to Defendants' Local Civil Rule 56.1 Statement (“Pl.56.1”).
Cleaning crews also made periodic inspections of the train platforms. According to Rodriguez, the cleaning crew typically performed routine cleaning services more than three times per shift. Def. 56.1 ¶ 14.
Notably, the elevator containing the spills was not the elevator out of which Quraishi had exited.
Quraishi's husband also preceded her without incident, but he appeared to take a slightly different path. Haq Dep'n at 45.
This letter, however, was addressed merely “To Whom It May Concern.” While plaintiff's counsel assures us that it was addressed and mailed to the office for Port Authority's General Counsel, we note that it would have been better practice to have listed the General Counsel by name, or at least have listed the General Counsel's office with attention to the torts division, to ensure preservation of the video rather than provide fodder for a spoliation motion.
Defendants' motions for summary judgment are directed solely to plaintiff's negligence claim and do not address the complaint's claims for negligent hiring and breach of contract. At oral argument, however, plaintiff consented to dismissal of her remaining claims for negligent hiring and breach of contract. See Oral Argument Tr. at 25 (“Mr. Sivin, are you pursuing [these claims]?” “No.” “You're not.” “And I have no objection to the Court sua sponte—dismissing them as such.”). These claims are therefore dismissed.
In the context of Quraishi's spoliation motion, “defendants” refers only to Port Authority and Bombardier, as this motion was not brought against Capital or North Mountain.
See Oral Argument Tr. at 11 (“My guess is, if I had more video, it would probably have been more beneficial to me. I would have loved to have produced it.”).
See Oral Argument Tr. at 5 (“It's conceivable that [the footage] may not have shown anything that would have demonstrated notice. We just don't know.”).
Indeed, Quraishi's lawyer conceded at oral argument that there was no direct evidence showing that the decision to save only eight minutes was deliberate or taken with the intent to conceal information helpful to Quraishi. Oral Argument Tr. at 3 (“My question is: In the course of the lawsuit, was any evidence developed that demonstrated that the individual who selected the amount of the tape to be preserved had knowledge of evidence constituting negligence on the part of the Port Authority in the time period that was not preserved, or, right or wrong, was this a more neutral decision? Was it neutral, was it deliberate to hide something? That's my question.” “Well, plaintiff would not be privy to that information without evidence from the defendant—“ “Well, the issue is: Did you develop any evidence? If the answer is no, then the answer is no. That's all.” ... “The answer to that question is no.”).
In opposition to Quraishi's spoliation motion, defendants argue that because the view of the area where Quraishi fell is briefly blocked in the second clip, it is possible that a spill occurred during that time and is simply not visible on the film. Def. Opp'n at 3–4. This argument, however, ignores the fact that there is no person who traverses the area of Quraishi's fall during the eight minutes who cannot be seen entering the Terminal platform on either the first or third clip, and these clips confirm that no individual appears to drink, hold, or carry any liquid during that time period.