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Dolishnya v. Costco Wholesale Corp.

United States District Court, E.D. New York

March 31, 2017




         Plaintiff 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.


         The 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.

         Upon 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.

         About 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.[1] Id. at 64-65, 71-72. Plaintiff is five feet, five inches tall. Id. at 49.

         Ms. 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.

         Plaintiff 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.

         Ms. 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.

         Ms. 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.

         Ms. 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.


         Summary 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).

         The 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 ...

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