The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:
In this personal injury action, Plaintiff George Janetos ("Plaintiff" or "Janetos") alleges that he was injured at a Home Depot U.S.A., Inc. store ("Defendant" or "Home Depot") in Jericho, New York. Plaintiff claims that his injuries resulted from unsafe conditions allegedly caused by Home Depot's negligence. Although the Complaint does not specify what the unsafe conditions were, the additional submissions in this case set forth Plaintiff's theory that he was injured when a bay of improperly stacked doors shifted from their position and hit him. Plaintiff Irene Janetos ("Mrs. Janetos"), the wife of George Janetos, asserts a loss of consortium claim. Before the Court is Plaintiffs' motion for summary judgment. Having considered the Complaint, the parties' written submissions, and the applicable case law, the Court DENIES the motion for summary judgment for the reasons that follow.
Because Plaintiffs did not submit a proper Rule 56.1 Statement (see discussion below) it is difficult to tell which facts are actually disputed. Therefore, the Court has looked to the record itself in preparing the following description of events, specifically the testimony and documentary evidence attached to the Affirmation of Plaintiffs' counsel, Willaim T. Bellard ("Pl's. Aff.") [DE 37-1 - 37-2], on which both parties rely. Relevant discrepancies in the evidence are noted.
On the morning of August 18, 2008, George Janetos went to Home Depot with his brother-in-law's wife, Olympia Parais. See Tr. of George Janetos Dep., Ex. E to Pls.' Aff. ("Janetos Tr.") 18-19; Tr. of Olympia Parais, Ex. L to Pls.' Aff. ("Parais Tr.") at 6. The purpose of the visit was for Janetos to assist Parais in purchasing some doors for her home renovation. See Janetos Tr. at 19. Janetos and Parais arrived at the store between 9:00 and 10:00 in the morning and proceeded to the door aisle. See Parais Tr. at 5; Janetos Tr. at 21-22, 24. The door aisle, Aisle 23, is located in Home Depot's Millwork Department. See Tr. of Michael Gregus Dep., Ex. H to Pls.' Aff. ("Gregus Tr.") at 22. There were approximately four to five other customers in the aisle when Janetos and Parais arrived, but no employees. Janetos Tr. at 22, 24. Prior to the incident at issue, two customers were viewing the bay of doors Janetos and Parais wished to examine. Janetos Tr. at 25-26; Parais Tr. at 8-9. Janetos and Parais waited until those customers were finished before approaching the bay. Id. Janetos could not recall whether the other customers were touching or moving the doors, but both he and Parais recalled that the other customers had a cart with them. Janetos Tr. at 26;Parais Tr. at 22. When the customers left, Janetos and Parais approached the doors and within a few seconds, the accident occurred. Janetos Tr. at 29; Parais Tr. at 9. Prior to the accident, neither Janetos nor Parais moved the doors. Parais Tr. at 21.
Janetos described the accident as follows: "The doors fell on me and I was trying not to hit my head. They threw me to the floor and after that I don't remember." Janetos Tr. at 35. The doors did not entirely fall out of the bay, but rather the top part of the doors fell forward, hitting Janetos, while the bottom portion remained secure. Id. at 36-37. Janetos stated that there were "seven or eight or ten" doors and that they fell on him "like a domino." Janetos Tr. at 34, 36. He further testified that when he initially approached the doors, he did not see anything which warned him that there could be an accident. Janetos Tr. at 34.
Parais described the incident as follows:
We stopped. Maybe not even five seconds passed, and the doors came cascading down one after the other hitting George. George had the mind of putting up his hands, um, to protect himself. I thought there was only one door. I tried to reach out to stop it. . . . There must have been, oh, at least six, seven doors. I mean, it happened really fast. Next thing I know, George was on the floor. I didn't know whether he was conscious or not.
Parais Tr. at 9-10. Parais explained that after the accident, she "called" and "somebody came," referring to an employee of Home Depot. Id. at 12.
According to Orlando Silva, Jr., a Home Depot employee, the doors that fell on Janetos weighed between 40 and 50 pounds each. See Tr. of Orlando Silva, Jr. Dep., Ex. F to Pls.' Aff. ("Silva Tr.") at 27-28. Another employee, Michael Gregus, the head of the Millwork Department at the time, stated that the doors weighed between 30 and 40 pounds. Gregus Tr. at 17, 36.
Gregus described the incident as follows:
I was standing by the Millwork desk which is towards the front of the aisle. I heard somebody yell, turned around saw probably anywhere between six and eight doors slabs falling forward and it hit a gentlemen in the shoulder. They stopped because the bottom beam hit the bottom of the doors, they didn't come all the way down. It did strike him in the shoulder and he fell to the ground and we were all like running over. We all went running to help.
Gregus Tr. at 23. Gregus testified that he saw Janetos fall. Id. at 38. However, this testimony differs from the earlier written statement Gregus prepared regarding the accident. The written statement reads as follows:
I (Mike Gregus) was helping a couple down aisle 23 with Bi-fold doors. I heard a commotion, turned around, and saw the customer on the floor holding his shoulder. The doors the [sic] fell were leaning and did not fall fully to the floor. I ran over and with another customers assistance, secured the doors so they would not fall and hit the customer again. After that, we helped the customer to his feet, I got him a stool to sit on, asked him if he needed anything and called an ASM over.
Pls.' Aff., Ex. I; Gregus Tr. at 26-27. Gregus further testified that it was the sound of a scream which brought his attention to the incident. Gregus Tr. at 37.
Parais testified that she was also injured in the accident, but the record is not clear as to how her injury occurred or whether the doors hit her as well. See Parais Tr. at 8.
After the accident, Gregus testified "I got [Janetos] a stool or a chair, I asked him if he needed some water and I told him to take a couple of deep breaths and relax for a minute before I call the manager." Gregus Tr. at 42. Janetos testified that although Parais requested a chair, nobody brought one. Janetos Tr. at 49-50. Parais recalled requesting a stool or something for Janetos to sit on, but stated that she did not remember if a Home Depot employee ever brought anything. Parais Tr. at 11. She also testified, however, that after the accident, Janetos sat on something that she believed to be either a stool or a cart. Id. at 11-12.
Joann Bakal-Lomena, the Home Depot manager on duty on the date of the accident, undertook the task of filling out the appropriate paperwork documenting the accident. See Tr. of Joann Bakal-Lomena, Ex. J to Pls.' Aff. ("Bakal-Lomena Tr.") at 14. Bakal-Lomena met with Janetos and Parais in a conference room in order to gather the information she needed. Id. at 29. She recalled that the task was "a little difficult" because Janetos and Parais "didn't speak very good English." Id. at 14. Janetos immigrated to the United States from Greece in 1996. Janetos Tr. at 7. He testified that he does not speak very much English and does not read or write any English. Id. at 6-7. Most of Bakal-Lomena's conversations were with Parais since "she spoke better English than [Janetos] did." Bakal-Lomena Tr. at 29. Janetos testified that he was in a lot of pain during the meeting and Parais had to translate Bakal-Lomena's questions. Janetos Tr. at 51-52.
Bakal-Lomena filled out the Customer Incident Statement form regarding the accident, which Janetos then signed. See Janetos Tr. at 59; Bakal-Lomena Tr. at 30. Although BakalLomena filled out the "Described What Occurred" section of the form, she did not actually see the accident. Bakal-Lomena Tr. at 28. In that section, she wrote: "looking at doors and moving and other customers took 4 stores & cust took doors the doors stacked behind the front doors fell forward and hit customer in his Right shoulder." Pls. Aff., Ex. K. The phrase "moving and other customers took 4 stores & cust took doors" is written in slanted font above the other words and is inserted after the fourth word with an arrow. See id. Bakal-Lomena stated that she did not know if Janetos read the form. Bakal-Lomena Tr. at 48. Janetos testified that he thought Parais translated the statement, but did not recall seeing the words written in slanted font that had been inserted. Janetos Tr. at 60. Parais stated that Janetos did not read the statement before signing it. Parais Tr. at 18. Regarding the form, Parais also stated that the "employees there, um, gave us a form saying it was to report that an accident had occurred at the store at that time. Um, and that's all they told us. And they asked George to sign. He signed using his left hand." Parais Tr. at 14. She agreed that she was "the one primarily involved in terms of the accident report, other than some basic info, such as [Janetos's] name." Id. at 16.
In addition to the Customer Incident Statement, Bakal-Lomena also filled out a General Claim Liability Worksheet. Bakal-Lomena Tr. at 31-32, 34; Pls.' Aff., Ex. K. Under the pre-printed heading "Describe what happened," she wrote "The last door was taken from stock & doors that were sta[illegible] flat fell forwarded hitting customers right should[illegible]." See Pls.' Aff., Ex. K.
Bakal-Lomena stated that Janetos refused her offer to call an ambulance. Bakal-Lomena Tr. at 37. Parais and Janetos, however, testified that no ambulance was offered. Parais Tr. at 14; Janetos Tr. at 52. After they left Home Depot, Parais and Janetos went to North Shore Hospital. Janetos Tr. at 68-69.
C. Home Depot's Door Stacking Policies and Practices
The plaintiffs have submitted four photographs as attachment G to Plaintiffs' Affirmation. These are photographs of Home Depot doors with captions bearing the date August 18, 2008 and the time of 9:25 a.m., as well as a claim number. The record does not reflect who took the photographs, but Joann Bakal-Lomena testified that she wrote the captions on each one. Bakal-Lomena Tr. at 41. Bakal-Lomena, Parais, and Gregus agreed that the photographs accurately reflect the doors on the date of the accident. See Bakal-Lomena Tr. at 39, 43; Parais Tr. at 16-17;*fn1 Gregus Tr. at 27-28. Janetos could not remember whether the photographs were accurate. See Janetos Tr. at 66-67.
One of the photographs depicts a set of stacked doors with the thin part facing toward the aisle, in a bookcase fashion. See Pls.' Aff., Ex. G. The other photographs appear to depict the doors after they have fallen. See id. Silva, Gregus, and Bakal-Lomena all testified that the proper way to stack the doors was the bookcase manner and they all cited safety as the reason for this policy. Silva Tr. at 13-14; Gregus Tr. at 20-21; Bakal-Lomena Tr. at 41, 43-44.
Silva testified that Home Depot stacks doors in bays that are approximately eight feet wide and separated by what Home Depot refers to as "M bars." Silva Tr. at 21. Gregus testified that "[t]here had to be a cable in front of [the doors] that had to be locked at all times just in case of anything." Gregus Tr. at 15. Silva testified that he was not sure if there were cables to hold the doors at the time of the accident. Silva Tr. at 22. There are no cables visible in any of the pictures and none of the other witnesses testified regarding the use of cables.
Both Silva and Gregus testified that each morning, the opening manager at Home Depot does a "safety walk" to ensure, among other things, that merchandise is stacked properly. Silva Tr. at 22-24, Gregus Tr. at 17-18. According to Silva, the safety walk is usually done by 10 a.m. and sometimes there are customers in the store before the walk is complete. Silva Tr. at 23. The employee performing the safety walk has a check list to record the findings of the walk. Id.; Bakal-Lomena Tr. at 20-21.
Gregus testified that, as Department Manager, he would conduct the safety walk of the Millwork Department. Gregus Tr. at 17-18. He stated that he would do the walk "most mornings," id. at 18, and if he did not do the inspection, then another associate would have done it, id. at 65. Bakal-Lomena also testified that she would do morning safety walks and stated that she did one on the morning of the accident. Bakal-Lomena Tr. at 18. Although she was not positive, she thought the walk was completed prior to the time the accident occurred because managers typically try to complete this task as early as possible in the morning. Id. There was no testimony or other evidence in the record regarding the results of the safety walk in Aisle 23 on the day of the accident.
According to Gregus, if he ever encountered an unsafe situation, such as one where the doors were improperly displayed, he "would gate the aisle off and fix it immediately." Gregus Tr. at 22; see id. at 49. He further testified that he had seen doors improperly stacked face ...