United States District Court, E.D. New York
MEMORANDUM AND ORDER
LOIS BLOOM, Magistrate Judge.
Plaintiff Juan Rodriguez brought this personal injury action seeking damages for injuries he sustained in a Home Depot store in Flushing, New York on May 2, 2011. According to plaintiff, he was waiting in line to purchase sheets of plywood for a residential construction project when the shopping cart holding the lumber collapsed, toppling the wood onto him and breaking his leg. Plaintiff alleges that defendant negligently caused the accident by providing a defective cart, and that defendant had actual or constructive notice of the cart's defect.
The Court held a bench trial on November 13, 2013. On the consent of the parties, the bench trial was limited solely to the issue of liability. After considering the evidence at trial, and having reviewed the parties' post-trial briefing on this issue, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. For the reasons set forth below, plaintiff failed to carry his burden of proving, by a preponderance of the evidence, that defendant had actual or constructive notice of any defect in the cart plaintiff used on the day of the accident. Accordingly, judgment shall enter for defendant.
FINDINGS OF FACT
On the morning of May 2, 2011, plaintiff received a phone call from a contractor who had hired him to work on a construction project. See Tr. of November 13, 2011 Trial ("Tr."), ECF No. 46, at 13. The contractor, whose name plaintiff could not recall, instructed plaintiff to meet him at the Home Depot in Flushing, New York to pick up building materials. Id . Plaintiff walked to the store. Id. at 15, 50. When he arrived at the store around 9:30 a.m., plaintiff found the contractor standing by the cash registers next to a shopping cart, which had six to eight pieces of plywood stacked on an elevated platform approximately four feet high. Id .; id. at 24. The contractor asked plaintiff to stand in line with the cart while he went to get additional supplies. Id. at 15.
Plaintiff testified regarding the condition of the cart both before and after the accident occurred, using an exemplar cart supplied by defendant as a demonstrative exhibit. He stated that, after the contractor left him with the cart, he pushed the cart approximately five feet closer to the cash registers. Id. at 24. Plaintiff observed that the wood was "properly placed" on the cart, but he also noticed that the cart was difficult to push. Id . He testified on direct examination that the weight of the wood may have made the cart cumbersome. Id. at 24-25 ("When I was pushing it, it was not doing well. It was moving but - with difficulty I was pushing it.... I don't know whether it was because of the weight or whether there was something with the cart because it was hard to push it."). On cross examination, however, plaintiff stated that he had trouble moving the cart because "[s]omething was wrong with the cart." Id. at 50.
Plaintiff was standing with his back to the cart for approximately two to three minutes when he felt the lumber and cart topple into him, knocking him to the floor. Id. at 25-26. Defendant's employees who responded to the accident moved the cart a short distance away from where plaintiff was lying on the floor. Id. at 27. When plaintiff saw the cart on its side after the accident, he observed that two of the wheel platforms on one side of the cart were bent at an outward angle. Id. at 20-21. Plaintiff had an unobstructed view of the cart's wheels from a distance of approximately five feet away. Id. at 22. Plaintiff was in significant pain at the time, and he acknowledged at trial that he was "groggy" immediately after the accident occurred. Id. at 59 ("I even saw elephants flying. That's how strong the pain was.").
Significantly, plaintiff's testimony at trial differed from his deposition testimony in a number of key respects. Specifically, plaintiff testified at his deposition that he and the contractor drove to the store together, and that the cart was loaded and waiting for them when they arrived. See Rodriguez Tr., ECF No. 24 Ex. E, at 36, 46; id. at 74 ("[The contractor] went in and left me waiting by the cart and the boards. The workers had already placed them on the cart."). Although plaintiff acknowledged during his deposition that he did not see the cart being loaded, he stated then that he believed that Home Depot employees had loaded the cart. Id. at 39-42. Plaintiff's deposition testimony was also clear with respect to the cart's performance immediately before the accident occurred: he testified that he did not have any difficulty moving the cart, and that "the cart rolled perfectly." Id. at 66; id. at 50 ("When I moved it, it was a little heavy, but I didn't have any difficulty.").
Plaintiff called two witnesses at trial who were at Home Depot on the morning of plaintiff's accident: brothers Luis Cedeno and Freddy Cedeno. Luis was standing outside the entrance to Home Depot speaking with a potential client and did not see the accident occur. Id. at 86. Instead, he looked into the store through the doors and saw plaintiff had been knocked to the ground by the cart and was underneath the cart and the wood. Id. at 87-88. Because he recognized plaintiff as someone who would come to the store with clients to pick up materials and was concerned for his well-being, Luis came to plaintiff's assistance after the accident occurred. Id. at 85.
Luis testified repeatedly and credibly at trial that, while he saw the cart on its side after the accident occurred, he did not pay attention to the cart's condition because he was more concerned with plaintiff's injury. See id. at 89 ("I didn't pay much attention either to the cart or the wood. I was more worried as to what was happening to him.... [Y]ou could say yes, that I saw [the cart] but I didn't pay attention to it."); id. at 99 ("I didn't pay too much attention on the cart, but really on what was happening to [plaintiff]."). He expressly stated that he did not see the cart's wheels after the accident. Id. at 89. Notably, Luis disavowed his prior deposition testimony, in which he stated that "the two tires or wheels on the right side... were turned or bent with the base and everything." Dep. Tr. of Luis Cedeno, ECF No. 24 Ex. H., at 10. When he was read this answer at trial, Luis responded, "That was not the question that I was asked nor the question that I answered. They asked me about the wheels of the carts in Home Depot and I told them that generally speaking the wheels in the Home Depot carts were damaged." Tr. at 92.
Luis's brother, Freddy Cedeno, was also at the Home Depot purchasing wood on the morning of plaintiff's accident. Id. at 109, 117. Like his brother, Freddy did not see the accident occur; plaintiff had already been knocked to the ground by the time Freddy saw him. Id. at 118. When he approached plaintiff, he noticed that the cart was "flipped over" a few feet from where plaintiff was lying on the floor and that defendant's employees were trying to move it to one side. Id. at 120. Freddy testified that he noticed that the two of the cart's wheels, and the bases holding those wheels, were "bent." Id. at 120-21. He also testified that defendant's employees "moved in front of the cart.... [T]hey tried to cover it so as photographs would not be taken." Id. at 123.
Freddy also offered his assessment of the general condition of Home Depot's shopping carts, testifying that, in the past, he had difficulties using the carts at various Home Depot stores, saying that, "generally, they don't slide correctly... because the wheels are no good.... They get stuck. They go to another, to a side." Id. at 113. He stated that he had noticed these problems in different types of carts - those with four wheels and those with six - and that, "generally speaking, the carts have problems." Id.at 114; see also id. at 125 ("At the Flushing Meadow [store], what happens is simply the carts there, they don't really run well.... I never had one tip over to me. Just simply stated, they are just not really dependable."). He testified that he had notified Home Depot employees about faulty carts in the past, but that he had never seen an employee take a cart out of service. Id. at 115-16, 125 ("Generally, they leave them there, the good and the bad are all mixed in there together.").
The parties stipulated to the admission of the deposition transcript of Philip Hartman, the assistant manager of defendant's store. Id. at 144-45; see also ECF Nos. 41, 42. Like the Cedeno brothers, Hartman arrived at the scene of plaintiff's accident shortly after it occurred, and observed the cart on its side. See Dep. Tr. of P. Hartman, ECF No. 24 Ex. F, at 27. Because he was primarily concerned for plaintiff's safety, he did not inspect the cart. Id . Hartman also did not know whether the cart was put back into service after the accident for another customer to use. Compare id. at 29 (stating that the cart was "put back in service right out in the parking lot" on the day of the accident) with id. at 34-36 (agreeing that he is "not really sure if it was put back into service that day").
Hartman testified at length during his deposition regarding how the carts at defendant's store were maintained, stating that defendant's employees did not conduct regular inspections of the carts. Hartman Tr. at 14-15. Instead, when the associates responsible for collecting carts used by shoppers noticed a cart that was "broken or unsafe, " they would notify a supervisor and bring the cart to the store's "designated area for broken carts." Id. at 12-13; id. at 14-15 ("Q: [W]hat I'm asking is was there any sort of procedure in place by Home Depot where an employee of Home Depot, regardless of who that employee was, would inspect the carts on any sort of regular basis? A: Just as you are touching them, if they're unsafe you bring them back, but no official inspection as far as a date or time."). Although a third party company checked the carts every month to repair any damaged carts, Hartman could not identify the company by name and could not speak to how thoroughly the carts were inspected. Id. at 14-15 ("There's a company that repairs them and they walk the parking lot and check all carts to see if there's anything that needs to be repaired, missing wheels, stuff like that. How detailed their inspection is, I'm not sure."). According to ...