Bennett v. Home Depot USA, Inc.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CHARLENE BENNETT,
Plaintiff,
v.
HOME DEPOT USA, INC.,
Defendant.
MEMORANDUM & ORDER
23-CV-08622 (NRM) (AYS)
NINA R. MORRISON, United States District Judge:
This is a personal injury lawsuit arising from an incident at a Home Depot in
Levittown, New York. Plaintiff Charlene Bennett slipped on a pool of detergent while
shopping for cleaning products. She brings suit against Defendant Home Depot USA,
Inc. (“Home Depot”), alleging that Home Depot breached its duty to keep and
maintain premises in reasonably safe condition. After discovery, Home Depot filed a
motion for summary judgment. For the reasons that follow, the Court grants Home
Depot’s motion for summary judgment.
BACKGROUND
I. 	Factual Background
The following facts are drawn from the summary judgment record and are
undisputed unless otherwise indicated.
On the afternoon of February 16, 2023, Bennett drove to a Home Depot in
Levittown, New York with her husband, John, to purchase cleaning supplies. 	Dep.
of Charlene Bennett dated Aug. 30, 2024, Def. Ex. C (“Bennett Dep.”) at 7–9, ECF
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No. 26-5; Def. Rule 56.1 Statement (“Def. 56.1 Stmt.”) ¶ 1 n.1, ECF No. 26-1.1 When
she arrived, she followed signs to the aisle with cleaning supplies. 	Bennett Dep. at
10. She reports that there was proper lighting and that she had no problems seeing
ahead of her. Id. at 11–12.
Bennett made a right turn into the aisle with cleaning supplies, later identified
as “Aisle 19.” 	Bennett Dep. at 11–12; Def. 56.1 Stmt. ¶ 10; see also Dep. of Herold
Abraham dated Oct. 21, 2024, Def. Ex. D (“Abraham Dep.”) at 10, ECF No. 26-6.
There were no other customers or employees in the aisle at the time. 	Bennett Dep.
at 12. 	As Bennett turned into the aisle, she walked towards a container of Ajax on
her left, which was displayed below eye level. Id. at 12–14. She did not observe any
merchandise on the floor. Id. at 14. Bennett reached to grab the container, then fell
as her right foot slipped. Id. at 13, 15–16. At the time, John was “further up” in the
aisle towards the back of the store on his phone. Id. at 14–15.
After falling to the ground, Bennett saw that she was lying in a pool of light-
blue liquid, which she identified as detergent. Bennett Dep. at 17–18. The pool was
about a foot in diameter, slightly larger than a dinner plate. 	Id. at 19. 	The liquid
was also on Bennett’s leggings and upper body. Id. at 21. Bennett observed that the
detergent had come from a container on the same shelf as the Ajax, lying on its side,
though she could not remember whether the container was capped. Id. at 22–23. She
did not see any containers of detergent or bottle caps on the floor. Id. at 20. Bennett
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also noted that “[t]he whole aisle had different cleaners in it,” but that she had not
noticed any liquid detergent on the shelves near the Ajax prior to her fall. Id. at 19–
20.
After about five minutes, several employees including assistant store manager
Herold Abraham came to Bennett’s assistance. 	Bennett Dep. at 20, 26; Abraham
Dep. at 7, 9. Abraham observed that Bennett “was in discomfort and pain,” and asked
if she needed an ambulance. 	Abraham Dep. at 16. 	Bennett was given an ice pack
but otherwise refused medical attention. Id. at 12. She told Abraham that she had
fallen because of liquid from a leaking bottle. Id. at 12. Other employees then came
to “pull[] out the shelves” and the bottle of detergent “was leaking even more.”
Bennett Dep. at 26.
Bennett’s counsel deposed Abraham on October 21, 2024 regarding Abraham’s
involvement in the incident as well as the store policies at the Levittown Home Depot.
Abraham stated that on the day of the incident, he “couldn’t really tell” what had
caused Bennett to slip because “there was some powder” covering the ground.
Abraham Dep. at 9. He took a photo documenting the area where Bennett had fallen.
Id. at 10–11. 	The photo appears consistent with Abraham’s description, showing a
large amount of white powder covering what looks like light-blue liquid. Photo, Def.
Ex. E at 2, ECF No. 26-7. Though Abraham never personally verified the identity of
the liquid or the leaking container on the shelf, Defendant does not dispute that it
was detergent. Def. 56.1 Stmt. ¶ 16.
As for store practices, Abraham testified that employees “walk the floor
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throughout the day” and that there was an “in-focus team” that would do “audits” to
note any problems in the store. Abraham Dep. at 5. If a hazard was found, employees
would close off the area with “safety gates.” 	Id. at 4. 	Employees were not required
to log or document their inspections or any action taken in response to hazards. Id.
at 4–5. Abraham also stated that he “believe[s]” that he personally did a 10-minute
walkthrough of the store at the start of his shift on the day in question. Id. at 7. He
was unaware of whether there was video footage of Aisle 19 on that day, though he
knew that there were surveillance cameras in the store. Id. at 8. Finally, Abraham
was not aware of any complaints or incidents regarding Aisle 19 on the day of the
incident or any day prior. 	Abraham Dep. at 12–13. 	Defendant also conducted a
search for similar incidents recorded at the Levittown store dating back three years,
and found no such incidents. Def. 56.1 Stmt. ¶ 41.
II. 	Procedural Background
Bennett filed suit against Home Depot in the Supreme Court of New York,
Nasasau County, on October 17, 2023. Summons & Compl. (“Compl.”), ECF No. 1-1.
On October 31, 2023, the parties proceeded to mediation. Ltr. dated Jan. 9, 2024 at
1, ECF No. 11. 	The case was subsequently removed to this Court on November 20,
2023 on the basis of diversity jurisdiction. Notice of Removal, ECF No. 1. On July 8,
2025, Home Depot filed its motion for summary judgment. Mot. for Summ. J., ECF
No. 26.
In Bennett’s response to Defendant’s Rule 56.1 submission, she disputes only
two relevant facts. First, she disputes Defendant’s statement that “Mr. Abraham had
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no knowledge of any other incidents in Aisle 19 prior to [Bennett’s] incident,” Def.
Rule 56.1 Statement ¶ 37, because “aside from the testimony of Mr. Abraham, the
defendant has not proven that it had no knowledge of prior incidents on Aisle 19,” Pl.
Rule 56.1 Statement (“Pl. 56.1 Stmt.”) at 2, ECF No. 28-2. Second, Bennett disputes
Defendant’s claim that no accidents were reported in the Levittown Home Depot prior
to the date of her injury, Def. Rule 56.1 Statement ¶ 41, insofar as Defendant did not
produce “any evidentiary material in support” of that statement, Pl. 56.1 Stmt. at 2.
DISCUSSION
This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a) because the parties
are diverse in citizenship and the alleged amount in controversy is over $75,000.
Plaintiff has not adduced evidence tending to show that Defendant violated its
duty of care, instead alleging that Defendant has not met its burden of proving that
it did not breach its duty. 	However, under the federal standard for summary
judgment, a defendant has no such burden of proof at this stage of the case. For the
following reasons, the Court grants Defendant’s motion for summary judgment.
I. 	Standard of Review
“In Celotex [Corp. v. Catrett, 477 U.S. 317 (1986),] the Supreme Court made it
clear that in cases where the nonmovant will bear the ultimate burden of proof at
trial on an issue, the moving party’s burden under [Federal] Rule [of Civil Procedure]
56 will be satisfied if he can point to an absence of evidence to support an essential
element of the nonmoving party’s claim.” Brady v. Town of Colchester, 863 F.2d 205,
210–11 (2d Cir. 1988); see Celotex Corp., 477 U.S. at 323–26. Therefore, “[i]n federal
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court, it is the plaintiff who, as the nonmoving party, bears the burden of showing a
genuine dispute of material fact, even though a New York state court would require
the defendant to produce affirmative evidence” on the relevant issues. Cruz v. Target
Corp., No. 13-CV-4662 (NRB), 2014 WL 7177908, at *3 (S.D.N.Y. Dec. 17, 2014).
For her part, Plaintiff does not expressly challenge the federal standard in her
papers. On the contrary, in her Opposition, Plaintiff appears to accept the summary
judgment standard as outlined by Defendant. See Pl. Mem. of L. in Opp’n (“Opp’n”)
at 2–3, ECF No. 28 (“Plaintiff acknowledges the law on summary judgment as
presented generally in defendant’s brief . . . .”). 	However, Plaintiff’s arguments
throughout the Opposition continually rely on cases applying the New York state
standard for summary judgment. See, e.g., Opp’n at 5, 8 (citing Navetta v. Onondaga
Galleries Ltd. Liab. Co., 964 N.Y.S.2d 835, 836 (N.Y. App. Div. 2013)); id. at 6 (citing
Arbit v. Costco Wholesale Corp., 218 N.Y.S.3d 125, 126 (N.Y. App. Div. 2024)); id. at
8 (citing Wade-Westbrooke v. Eshaghian, 802 N.Y.S.2d 11, 11 (N.Y. App. Div. 2005)).
Here, the federal standard plainly applies. 	Under the doctrine of Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938), in federal court, “the substantive law to be applied
is State substantive law, while the procedural law to be applied is federal procedural
law.” 	Picciano v. McLoughlin, 723 F. Supp. 2d 491, 504 (N.D.N.Y. 2010). 	While
applying this classification “is sometimes a subtle undertaking[,] . . . where the
matter in question is one covered by the Federal Rules of Civil Procedure, ‘it is settled
that the Federal Rule applies regardless of contrary state law.’” Com/Tech Commc’n
Techs., Inc. v. Wireless Data Sys., Inc., 163 F.3d 149, 150–51 (2d Cir. 1998) (citation
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modified) (quoting Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 427 (1996)); see
also Hanna v. Plumer, 380 U.S. 460, 469–74 (1965).
Here, “Rule 56 ‘answers the question in dispute’—the defendant’s burden of
proof when moving for summary judgment—so Rule 56 applies unless it violates the
Rules Enabling Act or the Constitution.” Kirbaran v. Target Corp., No. 24-715, 2025
WL 973050 (2d Cir. Apr. 1, 2025) (summary order) (quoting Shady Grove Orthopedic
Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010)). 	Every circuit court that
has addressed this issue has held the same. 	See, e.g., Gen. Acc. Fire & Life Assur.
Corp. v. Akzona Inc., 622 F.2d 90, 93 n.5 (4th Cir. 1980); Biegas v. Quickway Carriers,
Inc., 573 F.3d 365, 374 (6th Cir. 2009); NRM Corp. v. Hercules, Inc., 758 F.2d 676,
683 n.20 (D.C. Cir. 1985).
II. 	Merits
The Court now turns to the merits of Plaintiff’s negligence claim. Under New
York substantive law, to establish a prima facie case of negligence in premises
liability cases, “a plaintiff must show one of the following: (1) the owner created the
defective condition that caused plaintiff’s injury; (2) the owner had actual notice of
the condition; or (3) the owner had constructive notice of the condition.” 	Janetos v.
Home Depot U.S.A., Inc., No. 09-CV-1025 (AKT), 2012 WL 4049839, at *9 (E.D.N.Y.
Sep. 13, 2012). Plaintiff fails to make any of these showings.
A. Creation of the Dangerous Condition
Though Plaintiff alleged all three of the above elements in her Complaint, see
Compl. ¶¶ 19–20, Plaintiff no longer alleges that Defendant was responsible for
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creating the spill. 	In any case, there is no evidence in the record from which a
reasonable jury could find that Defendant created the allegedly dangerous condition
that caused Plaintiff’s injuries here.
“Finding that [a] defendant created the dangerous condition requires ‘some
affirmative act’ on the part of the defendant.” Gonzalez v. Wal-Mart Stores, Inc., 299
F. Supp. 2d 188, 192 (S.D.N.Y. 2004) (quoting Fink v. Bd. of Educ., 498 N.Y.S.2d 440,
441 (N.Y. App. Div. 1986)). Plaintiff does not put forth any evidence showing such an
action. “The mere fact that a puddle of liquid originated from store merchandise does
not 	establish 	the creation 	of the 	puddle, 	because, 	the puddle 	is 	not a direct
consequence of the defendant’s passive activity of providing merchandise for sale.”
Cooper v. Pathmark Stores, Inc., 998 F. Supp. 218, 220 (E.D.N.Y. 1998). 	Plaintiff
generally criticizes Defendant’s practices regarding the documentation of hazards (or
lack thereof), see, e.g., Opp’n at 5, but any such policy failure “[a]t most[] . . . indirectly
led to the possibility of a dangerous condition, which is legally insufficient,” Lyman
v. PetSmart, Inc., No. 16-CV-4627 (JCM), 2018 WL 4538908, at *6 (S.D.N.Y. Sep. 21,
2018); see also Almodovar v. Wal-Mart Stores E., LP, No. 23-CV-9353 (AEK), 2025
WL 2773182, at *4 (S.D.N.Y. Sep. 26, 2025) (“To the extent Plaintiff[] contends that
Defendants created the water condition simply by having a self-service water filling
station . . . in the store—even without evidence that the water originated from such
a station—that argument is unavailing.”). There is therefore no genuine dispute as
to whether Defendant created the pool of detergent on which Plaintiff slipped.
B. Actual Notice
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Plaintiff also cannot show actual notice. “To prove actual notice, plaintiff must
present proof that defendants were, in fact, aware of the dangerous condition.”
Castellanos v. Target Dep’t Stores, Inc., No. 12-CV-2775 (GWG), 2013 WL 4017166,
at *4 (S.D.N.Y. Aug. 7, 2013) (internal quotation marks omitted) (quoting Sanchez v.
Pathmark Stores, Inc., No. 04-CV-1159 (GBD) (RLE), 2010 WL 1191633, at *2
(S.D.N.Y. Mar. 8, 2010)). 	Abraham testified that he was not aware of any prior
complaints or incidents involving spills in Aisle 19. 	Abraham Dep. at 13; Def. 56.1
Stmt. ¶ 37. 	Plaintiff does not allege that Abraham or any other Home Depot
employee was present at the time of the fall, or that they were otherwise made aware
of the pool of detergent prior to her fall. 	Plaintiff’s only relevant allegation is that
Defendant cannot prove a lack of actual notice because of the store’s policy to
document such incidents. See Opp. at 5; Pl. 56.1 Stmt. at 2 (“Plaintiff denies the truth
[of] the statement contained in paragraph 37 insofar as aside from the testimony of
Mr. Abraham, the defendant has not proven that it had no knowledge of prior
incidents on Aisle 19.”). However, as already discussed, “[u]nder the federal summary
judgment standard, Defendant is not required to put forth evidence demonstrating
its lack of actual notice . . . .” 	Alger v. Von Maur, Inc., No. 19-CV-6698, 2021 WL
1966773, at *3 (W.D.N.Y. May 17, 2021). 	Plaintiff can point to no evidence in the
record tending to prove that Home Depot employees had actual notice of the spilled
detergent prior to her fall. See id. (“Defendant must simply show that Plaintiff will
not be able to prove at trial that Defendant had [] actual [] notice based on the
evidence in the record.”).
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C. Constructive Notice
Last, Plaintiff fails to show constructive notice. To prove constructive notice of
a dangerous condition, the “defect must be visible and apparent and it must exist for
a sufficient length of time prior to the accident to permit defendant’s employees to
discover and remedy it.” 	Gordon v. Am. Museum of Nat. Hist., 67 N.Y.2d 836, 837
(N.Y. 1986).
Plaintiff has not adduced any evidence tending to show that the pool of
detergent was visible and apparent, or that it was present for any significant length
of time. She did not see any individuals in the aisle prior to her fall, Bennett Dep. at
12, 15, and did not photograph or otherwise contemporaneously document the
incident, id. at 21. 	She does not remember whether the container on the shelf was
uncapped, id. at 23, did not know if there were other similar containers on the shelf,
id. at 25, how long the container had been there prior to her incident, id., and whether
anyone else had complained about the container, id. at 26. She further testified that
she herself did not see the pool of liquid prior to slipping. 	Id. at 18. 	By contrast,
Abraham testified that “managers, supervisors, and associates . . . walk the floor
thoroughly” throughout the day and “are very, very firm” with taking action on
potential hazards. 	Abraham Dep. at 4–5. 	He stated that he did not hear of any
complaints or incidents in Aisle 19 on the day in question and was not aware of any
similar incidents on any day prior. Id. at 12–13.
Courts in our circuit regularly find that there is no requisite showing of
constructive notice under similar circumstances. 	See, e.g., Castellanos, 2013 WL
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4017166, at *5–7; Shimunov v. Home Depot U.S.A., Inc., No. 11-CV-5136 (KAM), 2014
WL 1311561, at *5–6 (E.D.N.Y. Mar. 28, 2014). 	“Although plaintiffs can establish
constructive notice through circumstantial evidence, they must offer more than mere
speculation 	that 	defendants 	should 	have 	been 	aware 	of 	a 	visibly 	hazardous
condition.” 	Shimunov, 2014 WL 1311561, at *5; see also Crawford v. Walmart Inc.,
No. 23-CV-03960 (OEM), 2025 WL 2467043, at *4–7 (E.D.N.Y. Aug. 27, 2025)
(“Plaintiff must do more than proffer a plausible theory — she must present evidence
from which a reasonable jury could draw the reasonable inference Defendants had
constructive notice of the particular condition at issue.”). 	Ultimately, “[b]ecause
[Plaintiff] did not notice the puddle and because [Plaintiff] ha[s] 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.’”
Casiano v. Target Stores, No. 06-CV-6286 (NG), 2009 WL 3246836, at *4 (E.D.N.Y.
Sep. 24, 2009) (last alteration in original) (quoting Kraemer v. K-Mart Corp., 641
N.Y.S.2d 130, 131 (N.Y. App. Div. 1996)).
In response, Plaintiff again resorts to cases applying the New York state
standard for summary judgment, which requires defendants to offer evidence about
the last cleaning or inspection prior to the incident. 	See Opp’n at 6–7; Arbit, 218
N.Y.S.3d at 127. However, “[b]ecause the federal burden of proof applies, Defendant
was not required to produce evidence of the last time the area was inspected or
cleaned but need only point to Plaintiff’s lack of evidence and inability to raise a
genuine issue of material fact . . . .” 	Decker v. Middletown Walmart Supercenter
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Store, No. 15-CV-2886 (JCM), 2017 WL 568761, at *9 (S.D.N.Y. Feb. 10, 2017); accord
Maitland v. Target Corp., No. 20-CV-3892 (MKB), 2023 WL 6282918, at *7 (E.D.N.Y.
Sep. 26, 2023), aff’d, No. 23-7520, 2024 WL 5182674 (2d Cir. Dec. 20, 2024).
Plaintiff correctly notes that “the issue of actual or constructive notice is
irrelevant where [the] defendant had a duty to conduct reasonable inspections of the
premises and failed to do so.” 	Tuthill v. United States, 270 F. Supp. 2d 395, 400
(S.D.N.Y. 2003); see Opp’n at 6. But Defendant has submitted testimony that Home
Depot did regularly inspect the aisles for hazards, see Abraham Dep. at 4–5, and
Plaintiff adduces no evidence to the contrary. In any case, even if it was shown that
Defendant failed to conduct an inspection, Plaintiff “must still come forward with
evidence showing that a reasonable inspection would have revealed the condition.”
Wilson v. Wal-Mart Stores E., LP, No. 16-CV-8637 (JCM), 2018 WL 4473342, at *8
(S.D.N.Y. Sep. 18, 2018). She has not done so.
Plaintiff has thus failed to show that there is a genuine dispute as to a material
fact in this case, and she has not produced evidence from which a reasonable jury
could hold Home Depot liable for her injuries.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is
granted.
/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge
Dated: 	January 8, 2026
Brooklyn, New York
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