District Judge Pamela K. Chen recently granted summary judgment in a slip and fall diversity case that highlights the difference between the summary judgment standards under federal and New York state law. Taylor v. Manheim Marketing Inc., 15-CV-01950 (E.D.N.Y. Nov. 30, 2017).
This case offers a reminder to counsel that the federal summary judgment standard can be less forgiving to plaintiffs, and a reason, particularly in close cases, for defense counsel to consider removing eligible cases to federal court.
Taylor involved a slip and fall at a gravel parking lot in defendant’s car auction facility. Plaintiff claimed that he slipped on a patch of oil or ice and that defendant either created or was on constructive notice of the condition. Judge Chen found that plaintiff’s failure to offer evidence that defendant created the hazard or had notice of the condition required dismissal of the case. In analyzing the summary judgment motion, Judge Chen noted a critical distinction between New York state and federal summary judgment practice:
The federal burden of proof on a motion for summary judgment differs from the corresponding standard under New York law on a slip-and-fall action. See, e.g., Tenay v. Culinary Teachers Ass’n of Hyde Park, 281 Fed.Appx. 11, 12-13 (2d Cir. 2008); Vasquez v. United States, No. 14-CV-1510 (DF), 2016 WL 315879, at *4-5 (S.D.N.Y. Jan. 15, 2016). “Under New York law, [a] defendant who moves for summary judgment in a [sl]ip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged hazardous condition, nor had actual or constructive notice of its existence for a length of time sufficient to discover and remedy it.” Vasquez, 2016 WL 315879, at *4 (citation omitted). Conversely, under federal law, the moving party “need not make any affirmative prima facie showing on [a] motion for summary judgment, and may discharge its burden of proof merely ‘by pointing to an absence of evidence to support an essential element of [Plaintiff’s] claim.’” Id. at *5 (citation omitted).
And, no, applying the federal summary judgment standard to a diversity action does not violate the Erie Doctrine – the burden of proof under rule FRCP 56 is procedural. See Tenay v. Culinary Teachers Ass’n of Hyde Park, 281 Fed.Appx. 11, 12-13 (2d Cir. 2008)). A more recent Seventh Circuit decision made that clear as well. See Couvillion v. Speedway LLC, 673 F. App’x 558, 559 (7th Cir. 2016) (“federal procedure governs all federal cases, even if this implies an outcome different from the one likely in state court”).
Posted by Solomon N. Klein, Litigation Partner
Schlam Stone & Dolan LLP