United States District Court, E.D. New York
MEMORANDUM AND ORDER
MARILYN D. GO, UNITED STATES MAGISTRATE JUDGE
Nadiya Dolishnya brings this personal injury action against
defendants Costco Wholesale Corporation ("Costco
Wholesale Corp.") and Costco Wholesale of Staten Island
("Costco Staten Island") for damages relating to
injuries she sustained in the warehouse of Costco Staten
Island. Plaintiff alleges that defendants negligently created
or failed to remedy a dangerous condition. After the parties
consented to having me hear this action, Costco Wholesale
Corp. moves for summary judgment on the grounds that it did
not create, nor have actual or constructive notice of the
alleged dangerous condition.
following facts are undisputed unless otherwise noted. On
November 29, 2009, plaintiff, her client Riva Proof, and Yeva
Levits, Ms. Proof's daughter, entered the Costco
Warehouse located in Staten Island, New York sometime after
10:00 a.m. Deposition of Nadiya Dolishnya ("Pl.'s
Dep.") (DE 16-3) at 25, 33. Plaintiff provided personal
care assistance to Ms. Proof and went to Costco to help Ms.
Proof with her shopping. Id. at 25, 31.
entering the store, plaintiff observed two Costco employees
to her right, setting up a display of shoe boxes with a
forklift. Id. at 37, 39-40, 47-48. One stack of
boxes was on a pallet on the forklift while some other wooden
pallets had been placed on the floor. Id. at 48. On
top of three or four wooden pallets, there were three to four
stacks of boxes, which were approximately six feet to eight
feet high. Id. at 43, 48-49.
two hours later, plaintiff and her companions returned to the
display area where plaintiff had seen the boxes of shoes.
Pl.'s Dep. at 55. The forklift was gone, but the stacks
of boxes remained on the wooden pallets. Id. at 57.
There were 4 stacks of boxes, which was piled up to about
eight feet high and with between 12 and 16 boxes on each
level of the stack. Id. at 64-65, 71-72. Plaintiff is
five feet, five inches tall. Id. at 49.
Levits asked a Costco employee standing near the display area
whether they could look at the shoes. Pl.'s Dep. at
55-56. The employee asked what size Ms. Levits wore and then
replied, "you can take it yourself." Id.
at 57, 73-74. After looking at the display for five to ten
minutes, plaintiff bent down to remove a box of shoes, but,
as she was doing so, the stack of shoe boxes shook and two
cans of cooking spray fell from the top of the stack and
struck plaintiff in the forehead. Id. at 59, 60, 66,
69, 76, 81, 132. At the time, the distance between the
plaintiff and the stack of boxes was approximately the length
from her finger tips to her elbow. Id. at 126. There
were approximately 10 boxes stacked on top of the box that
plaintiff removed. Id. at 70. However, none of the
shoe boxes fell. Id. at 59, 132. The two cans of
cooking spray were packaged together by a cardboard carton.
Id. at 77.
does not know how the cans of cooking spray got on top of the
stack of boxes and she did not see the cans prior to the
accident. Pl.'s Dep. at 61. At the time of the
accident, there were other customers looking at the shoe
display and removing boxes from the display. Id. at
63, 77. Plaintiff testified that someone standing on the
floor could not have reached up and put the cans of cooking
spray on top of the stack of boxes because the stack of shoes
was too high. Id. at 127-28.
Joanne Grippi and Mr. Michael Caccavale have been employed by
Costco Staten Island since 2005. Dep. of Grippi at 7; Dep. Of
Michael Caccavale at 6. Plaintiff's accident occurred
during the weekend after Thanksgiving, one of the busiest
times of the year in Costco. Caccavale Dep. at 31. The shoe
display area is in the center of the store while the area
where cooking spray is stocked is on the right side of the
building. Deposition of Michael Caccavale ("Caccavale
Dep.") (DE 16-5) at 69. When merchandise is moved from
the loading dock to the sales floor, the same forklift could
have carried both a pallet of cooking spray cans and a pallet
of shoe boxes. Id. at 72. Merchandise on the floor
is stocked on pallets, which are typically 48 inches wide and
40 inches deep. Id. at 20-21.
Grippi testified that stockers set up displays in the store
in the manner instructed by the merchandise manager and the
supervisor of that section of the store oversees the process.
Grippi Dep. at 26-27, 30, 58. However, Mr. Caccavale
testified that the merchandise manager would not instruct
stockers as to how to set up a display because the procedure
is self explanatory. Caccavale Dep. at 77. Generally,
displays are stocked at the beginning of the day with a full
day's supply of merchandise. Id. at 43. Although
there is no set height restriction, generally, the
merchandise displays at Costco are stacked no higher than six
feet so customers can access all the merchandise in the
display. Id. at 31, 33, 35.
Grippi and Mr. Caccavale testified that, as a general
practice, Costco employees conduct hourly "floor walks,
" during which they check every zone of the store.
Grippi Dep. at 37, 39; Caccavale Dep. at 29. After an
employee finishes a floor walk, he or she fills out the
"floor walk sheets." Grippi Dep. at 36. If the
employee observes a problem, he or she notes the issue with a
"P" on the first page of the sheets and further
explains it on the third page. Id. at 43-44;
Caccavale Dep. at 52. The caption on the third page of the
sheets states that: "This checklist documents your
hourly inspection of the warehouse by logging issues,
hazardous conditions, and action taken to correct them."
Floor walk sheet (De 16-6). In addition, if any Costco
employee observes an item of merchandise that is misplaced,
they are expected to collect the item. Grippi Dep. at 12, 48.
judgment is proper if "the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). The moving party bears the initial burden of
demonstrating an absence of genuine issues of material fact
and once it has done so, the burden shifts to the non-moving
party. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). A genuine issue for trial exists if, based on
the record as a whole, a reasonable jury could find in favor
of the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).
Court's responsibility is to determine if there is a
genuine issue to be tried, and not to resolve disputed issues
of fact. Id. Thus, in deciding such a motion, the
trial court's function "is not to weigh the evidence
or resolve issues of fact, but to decide instead whether,
after resolving all ambiguities and drawing all inferences in
favor of the non-moving party, a rational juror could find in
favor of that party." Pinto v. Allstate Ins.
Co., 221 F.3d 394, 398 (2d Cir. 2000); see
also, DeFabio v. E. Hampton Union Free Sch.
Dist., 623 F.3d ...