plaintiff struck his head on a fixed hook in a dressing room ( Binensztok v. Marshall Stores, A.D.2d , 644 N.Y.S.2d 333 (2d Dep't 1996), or where the plaintiff stepped on a nail protruding from a floor board on a pile of debris ( Pellicone v. Lambda Chi Alpha Fraternity, Inc., A.D.2d , 644 N.Y.S.2d 769 (2d. Dep't 1996), here the dangerous condition, while observable, was a flexible, evolving situation in a busy self-service store, resulting in a falling lumber board from a location made dangerous by the defendant's acts of commission and omission.
In this case, the dangerous condition, precipitating the fall from a height of a heavy lumber board, presented an unreasonable risk of harm. Kinfe v. Port Authority of New York, New Jersey, 232 A.D.2d 373, 648 N.Y.S.2d 322 (2d Dep't 1996), cf. Naim v. Schwartz Brothers Memorial Chap, Inc., 232 A.D.2d 383, 648 N.Y.S.2d 136 (2d Dep't 1996).
Under the circumstances in this case, in order to impose liability upon the defendant, there must be evidence tending to show either that it "created the dangerous condition which caused the accident or that it had actual or constructive notice of that condition." Payne v. Big V Supermarkets, Inc., 140 A.D.2d 422, 528 N.Y.S.2d 123 (2d Dep't 1988). See also, Eddy. v. Tops Friendly Markets, 91 A.D.2d 1203, 459 N.Y.S.2d 196 (4th Dep't 1983), aff'd, 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243 (1983). Here, the plaintiff proved, by a preponderance of the evidence, that the defendant created a condition setting the stage for a potentially dangerous and reasonably foreseeable situation by placing the large lumber boards in a vertical condition in a bin 3 1/2 feet above the floor, rather than at ground level. In addition, the plaintiff further proved that the defendant had actual knowledge that, on several occasions, the lumber boards were in a dangerous condition, namely, placed on top of the toeboard, in a precarious position. Accordingly, the plaintiff has established, by a preponderance of the evidence, that the defendant Home Depot was negligent with regard to the placing and storing of the lumber boards at issue, which negligence was a proximate cause of injury and damage to the plaintiff.
III. AS TO CONTRIBUTORY NEGLIGENCE
With regard to the issue of contributory negligence on the part of the plaintiff he testified that on the morning of the occurrence he noticed the boards on the edge of the toeboard. He stated that after he saw the lumber so precariously placed, he did not push the boards back into the bin. Repecki also testified that he saw boards similarly located on toeboards of other shelves on other occasions. He stated that he did push the boards back in the bin on prior occasions so that he could select boards in the particular bin. Repecki testified that at the time of this occurrence there were a number of boards on the toeboard. This was an obviously potentially dangerous condition to the customers traversing the area. Repecki conceded that on the day of his accident, he could have pushed the boards back.
A customer in a store is bound to use reasonable care for his own safety, particularly when he becomes aware of a dangerous condition existing which requires him to use this care. Ford v. John Wanamaker, 165 A.D. 284, 150 N.Y.S. 795 (1st Dep't 1914). The Court finds that, a reasonably prudent customer would have been more careful in walking near the bin knowing that heavy lumber boards were hazardously placed. This failure to exercise reasonable care constituted negligence on his part. Weighing the far greater negligence by the owner of the store who created this precarious storage condition, placed the boards in the bin and failed to maintain the bin properly, the Court apportions the negligence of the defendant Home Depot to be 85% and the negligence of the plaintiff to be 15%.
IV. INJURIES AND DAMAGES
The Court finds that a piece of lumber 8 inches wide 1 1/4 inches thick and 8 feet long, falling from a height of approximately 4 feet, landed on the plaintiff's left big toe. The plaintiff sustained a crushing injury to the left big toe (see photograph Plaintiffs' Exh. 4), requiring medical attention at Huntington Hospital and by his physician Dr. Kirtzner, who referred the plaintiff to an orthopedic surgeon, Dr. Thaddeus Spak.
Dr. Spak testified that the plaintiff sustained a "very" comminuted fracture of the distal phalanx of the left big toe, with 15 [degrees] to 20 [degrees] backward displacement. He also stated that this trauma aggravated a condition of pre-existing arthritis in the metatorsophlangeal joint of the left big toe. As a result, according to Dr. Spak, the plaintiff will have permanent pain and stiffness in both joints of the left big toe, requiring the use of a "stiff shoe" for the rest of his life.
These traumatic injuries were essentially confirmed by the defendant's examining orthopedic surgeon, Dr. Jerrold Gorski. He agreed that the plaintiff sustained the comminuted fractures in the distal phalanx of the left great toe as shown in the x-rays (Plaintiffs' Exhs. 14A, 14B and 14C). Dr. Gorski also agreed that the plaintiff's pre-existing arthritic condition in the left big toe was aggravated by the trauma sustained by the plaintiff in this occurrence.
Reviewing all of the evidence in this case the Court makes the following awards:
For the injuries and pain and suffering sustained by the plaintiff Glenn Repecki from June 17, 1995 to the present date, the Court awards to the plaintiff the sum of $ 10,000.
For the stiffness and continuing aggravation of the arthritic condition in the toe, in the future, a period, according to the life tables of approximately 43 years, this Court awards to the plaintiff Glenn Repecki the sum of $ 25,000.
In addition to the injury to his left big toe, the plaintiff was out of work for ten weeks. The Court finds that during that period, the plaintiff had two contracts to do home improvement work, in which he would have earned the net sum of $ 3800, as his 50% share of the net profits.
Accordingly, the Court awards to the plaintiff Glenn Repecki the total sum of $ 38,800, less the sum of $ 5,820, representing the 15% contributory negligence finding; for a net award to the plaintiff in the sum of $ 32,980.00.
The Clerk is directed to enter judgment in favor of the plaintiff Glenn Repecki against the defendant Home Depot, U.S.A. d/b/a Home Depot in the sum of $ 32,980.00.
DATED: Uniondale, New York
October 18, 1996
ARTHUR D. SPATT
United States District Judge
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