The opinion of the court was delivered by: SPATT
This is an action to recover damages for personal injuries allegedly resulting from the negligence of the defendant with regard to the storing and stacking of lumber at the defendant's Home Depot store located in Valley Stream, New York.
I. FINDINGS OF FACT AFTER TRIAL - AS TO LIABILITY
On June 17, 1995, the plaintiff Glenn Repecki ("the plaintiff" or "Repecki") was a 31 year old self-employed home improvement contractor. Repecki was in partnership with one Philip Senra, who was only able to perform part-time services in the business because he was a full time New York City Firefighter. Repecki was shopping at the Valley Stream store owned by the defendant Home Depot U.S.A. Inc. ("Home Depot" or "the defendant"). He was familiar with all the Long Island Home Depot stores and had been in the Valley Stream store "at least 100 times."
On this occasion, on Saturday, June 17, 1995, Repecki arrived at the Valley Stream store about 10:00 a.m. accompanied by his customer Arnold Miot. The plaintiff was going to do a home improvement job at Miot's home in North Woodmere and was purchasing materials at Home Depot. When he and Miot arrived at the store, Repecki got a lumber cart to hold his purchases. He selected some articles including a Stanley exterior door, some mouldings, locks and shims.
The two men then walked to the Dimension Lumber Mouldings Department to purchase some lumber boards. In that area, Repecki selected some mouldings and three pieces of 3/4" board and two pieces of 5/4" board. After he placed the second piece of 5/4" board in the cart he turned and walked toward a shelf. When Repecki was within a foot of the shelf and to the left of the 5/4" board shelf, a board dropped off the shelf above and struck him on the left big toe. The board that struck the plaintiff was 8 inches wide, 1 inch thick, and approximately 8 feet long.
This piece of lumber was stored in a bin which was approximately four feet above the floor. The lumber was prevented from falling from the bin by a 1 1/2" toeboard which stretched horizontally across the front of the bin. This bin was "fairly full" and the boards were in the bin in a "disheveled manner." Prior to the occurrence, the plaintiff never touched any of the boards in the bin. However, he did see boards lying on top of the toeboard prior to the occurrence.
The Court finds that the plaintiff Glenn Repecki was a candid and credible witness and accepts his version of how this accident occurred.
Photographs were introduced by the plaintiff which purported to show the condition of the boards laying on top of the toeboard, as that condition that existed at the time of the occurrence. These photos show that the lumber boards resting on the toeboard represented a potentially dangerous condition. (See Plaintiffs' Exhibits 1, 2 and 3) (See Appendix A, B and C).
Contrary to the defendant's contention, expert testimony is not necessary to establish that the design of the bin and storage of the lumber in it, presented a potentially dangerous condition. Here, given the testimony of the witnesses regarding the condition of the bins, the distance between the bin and the floor and the common sense, reasonable foreseeability that heavy lumber boards should not be placed in such precarious locations, especially in a busy self-service store, expert testimony is unnecessary to establish the finding of a dangerous condition. See, for example, Fortunato v. Dover Union Free School District, 224 A.D.2d 658, 638 N.Y.S.2d 727 (2d Dep't 1996).
The Court finds that most, if not all, of the Home Depot stores on Long Island place the long heavy lumber boards in bins at or near the level of the floor. It was stipulated by the parties that in five of the stores such lumber is stacked either on the floor or six inches to one foot above the floor. Photographs of the Northport, Westbury, Freeport, Farmingdale and East Meadow stores with such low-level stacking were introduced. (See Plaintiffs' Exhs. 9, 10, 11, 12 and 13) (See Appendix D, E, F, G and H). The Court notes that the defendant did not introduce any photographs of any other Home Depot stores which also had the "high level" lumber bins. Nor did the defendant produce any witness who was working at the Valley Stream store on the date of the accident.
Much of the plaintiff's testimony with regard to the storing of heavy lumber in bins above the floor was confirmed by Paul A. Feddern, a loss prevention supervisor with Home Depot at the Valley Stream store. His duties included protecting the Home Depot assets, assuring a safe place for customers to shop and investigating accidents. He worked at five other Home Depot stores. Feddern testified that some of the stores stacked the lumber vertically in bins 3 to 3 1/2 feet above the floor with a two inch toeboard in front of the bin for safety purposes. However, the defendant produced no photographs of such stores containing high-level lumber bins.
Significantly, Feddern testified that he occasionally saw lumber stacked on top of the safety toeboards in these higher bins. He saw this condition in the Valley Stream store. When he saw this condition, he would push the lumber back away from the toeboard. Home Depot employees would "straighten out" the lumber several times a day. Also, as stated by Feddern, Home Depot was ...