Dolishnya v. Costco Wholesale Corp. et al

Filing 26

ORDER denying 15 Motion for Summary Judgment. Ordered by Magistrate Judge Marilyn D. Go on 3/31/2017. (Go, Marilyn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NADIYA DOLISHNYA,
Plaintiff,
-against-

MEMORANDUM AND ORDER

COSTCO WHOLESALE CORP. and COSTCO
WHOLESALE OF STATEN ISLAND,

13-CV-00388 (MDG)

Defendants.
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GO, United States Magistrate Judge:
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.
FACTUAL BACKGROUND
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
Id. at 43, 48-49.

approximately six feet to eight feet high.

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
Plaintiff is five feet, five inches tall.

1/

Id. at 64-65, 71-72.

Id. at 49.

Defendant points to plaintiff's testimony and other evidence to
argue that the stack of boxes was six feet high. Def.'s Memorandum
of Law (DE 17) at 3. In fact, plaintiff testified that when she saw
the forklift being used to set up the shoe display, the stack of
boxes was higher than the eight foot ceiling in the deposition
room. Pl.'s Dep. at 43. She later testified that when the display
was being set up, the stack of boxes was about six feet high. Id.
at 49. Plaintiff further testified that when the accident
occurred, the pile of boxes was approximately eight feet high. Id.
at 71-72. Joanne Grippi, one of defendant's employees, testified
that merchandise is usually stacked no higher than six feet.
Deposition of Joanne Grippi ("Grippi Dep.") (DE 16-4) at 31, 33,
35. To the extent the height of the stack of boxes at the time of
the accident is a material issue in this case, this Court construes
plaintiff's testimony in her favor that the stack was eight feet
high at the time of the accident, irrespective of what she saw two
hours earlier.
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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.
81, 132.

Id. at 59, 60, 66, 69, 76,

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.
none of the shoe boxes fell.

Id. at 70.

Id. at 59, 132.

However,

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.
Michael Caccavale at 6.

Dep. of Grippi at 7; Dep. Of

Plaintiff's accident occurred during the
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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.
at 43.

Id.

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.
Caccavale Dep. at 29.

Grippi Dep. at 37, 39;

After an employee finishes a floor walk, he
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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."
walk sheet (De 16-6).

Floor

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.
DISCUSSION

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.
Catrett, 477 U.S. 317, 322-23 (1986).

Celotex Corp. v.

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,

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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 71, 74 (2d Cir. 2010) (the
court must draw "all reasonable factual inferences in the light
most favorable" to the nonmoving party").
Because jurisdiction is based on diversity of citizenship,
the Court applies New York substantive law.

Imbrogno v.

Chamberlin, 89 F.3d 87, 89 (2d Cir. 1996) (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938)).

Under New York law, on a motion for

summary judgment in a premises liability case, "a defendant
property owner or entity responsible for maintaining the premises
has the initial burden of making a prima facie showing that it
neither created the hazardous condition nor had actual or
constructive notice of its existence."

D'Ippolito v. Shop-Rite

Supermkt., 981 N.Y.S.2d 587, 588 (2d Dep't 2014); Mahoney v. AMC
Entm't, Inc., 959 N.Y.S.2d 752, 753 (2d Dep't 2013).

However, in

federal court, the burden shifting framework does not apply because
"the evidentiary burdens that the respective parties will bear at
trial guide district courts in their determination of summary
judgment motions."

Tenay v. Culinary Teachers Ass'n of Hyde Park,

281 Fed. App'x 11, 12-13

(2d Cir. 2008); see Simoes v. Target

Corp., 2013 WL 2948083, at *9 n.8 (E.D.N.Y. 2013); Painchault v.
Target Corp., 2011 WL 4344150, at *3 (E.D.N.Y. 2011).

Therefore,

since plaintiff would bear the burden at trial of establishing that
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defendant had actual or constructive notice of the hazardous
condition or created the hazardous condition at issue, the court
may grant summary judgment if there is no evidence establishing a
genuine issue for trial as to causation, actual notice or
constructive notice.

See Tenay, 281 Fed. App'x at 13.

Defendant argues that it neither created nor had actual or
constructive notice of the placement of the cooking spray cans.
Def.'s Memorandum of Law (DE 17) at 3.

Although plaintiff has not

submitted any direct evidence that defendant created the hazardous
condition, she argues that there is circumstantial evidence from
which a reasonable trier of fact could infer that defendant created
the condition.

"A prima facie case of negligence based on

circumstantial evidence is established when plaintiff's evidence
proves that it is 'more likely' or 'more reasonable' that the
injury was caused by defendant's negligence than by some other
agency."

N.Y. Tel. Co. v. Harrison & Burrows Bridge Contractors,

Inc., 3 A.D.3d 606, 771 N.Y.S.2d 187, 190 (3d Dep't 2004).
Plaintiff contends that the cans of cooking spray fell on her from
the top of the stack of boxes, which was eight feet high at the
time of the accident.

Mr. Caccavale testified that displays are

stocked with a full day's supply of merchandise and the day of the
accident was one of the store's busiest days of the year.
Plaintiff testified that she removed one of the shoe boxes from the
stack, the stack shook and the cans of cooking spray fell, striking
her forehead.

She had earlier seen Costco employees setting up the

display using a forklift.

There is no evidence that there were any
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ladders in the area or other tools that would have enabled a
customer to place the cooking spray cans on the top of an eight
foot high stack of boxes.

Thus, plaintiff has submitted sufficient

evidence for a reasonable juror to infer that defendant created the
hazard that caused plaintiff's accident.

See Olsen v. K Mart

Corp., No. 04-CV-3648, 2005 WL 2989546, at *9 (E.D.N.Y. 2005)
(denying summary judgment where circumstantial evidence could lead
reasonable juror to infer that defendant created hazard).
Defendant did not submit any evidence from a person who
participated in the set-up of the shoe display or had knowledge of
the set-up that could have established that the defendant did not
create the allegedly hazardous condition.

Ms. Grippi testified

that she did not think she worked at the store on the day of the
accident and Mr. Caccavale testified that he did not know if he
worked that day and had no knowledge of how the shoes were stacked.
Grippi Dep. at 51; Caccavle Dep. at 65.

The testimony of Mr.

Caccavale that defendant's employees would not leave a stray item
at the top of a display (Caccavale Dep. at 39-40) and Ms. Grippi's
testimony that a Merchandising Manager generally inspects displays
to make sure they are safe (Grippi Dep. at 35-36, 59), at best,
raises an issue of fact as to causation, in the absence of
information from someone with direct knowledge of conditions at the
time of the accident.

Evidence of general procedures is

insufficient to show that the defendant did not create the
hazardous condition.

See Dones v. New York Housing Auth., 81

A.D.3d 554, 917 N.Y.S.2d 186 (1st Dep't 2011).
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The inspection

sheets submitted by defendant showing that the zone of the store
where the display was located had been inspected by a store
employee is not determinative since there is no evidence as to
whether this type of inspection would have revealed the presence of
the cooking spray cans at the top of the display.

Plaintiff

testified that she did not see the cans because they were "too high
up."

Dolishnya Dep. at 61.

Indeed, defendant recognizes that

"[t]here is no proof in the record before the Court that
establishes that the package of Pam was visible at all."

Reply

Mem. at 7.
Defendant further argues that plaintiff cannot raise an issue
of fact as to causation because plaintiff testified that she did
not see the cooking spray cans prior to the accident and does not
know how the cans of cooking spray appeared at the scene of the
accident.

However, "circumstantial evidence is sufficient to make

out a prima facie case of negligence if it supports an inference of
causation or negligence, even if it does not rule out 'the
existence of remote possibilities that the injury was not caused by
the defendant, or that the defendant was not negligent.'"

Olsen,

2005 WL 2989546, at *5 (quoting Dillon v. Rockaway Beach Hosp. &
Dispensary, 284 N.Y. 176, 179, 30 N.E.2d 373 (1940)).

Although

speculation absent any evidence, whether direct or circumstantial,
is insufficient to defeat a motion for summary judgment, "the
possibility that an accident may have been caused by factors other
than defendant's negligence does not mandate a conclusion that
plaintiff has failed to make out a prima facie case."
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Brito v.

Manhattan and Bronx Surface Transit Operating Auth., 188 A.D.2d
253, 254, 590 N.Y.S.2d 450 (1st Dep't 1992).

On the contrary,

"[t]o avoid summary judgment, [plaintiff] was obligated simply to
establish a reasonable probability that the accident was caused by
[defendant's] negligence."

Williams v. KFC Nat'l Mgmt. Co., 391

F.3d 411, 420 (2d Cir. 2004).

Plaintiff's testimony that the cans

fell when she removed one of the boxes, is more than sufficient
circumstantial evidence for a reasonable jury to find that the cans
were on top of the stack of boxes and that their placement by a
defendant's employee is neither a remote nor technical possibility.
See Doona v. One Source Holdings, Inc., 680 F.Supp.2d 394, 404
(E.D.N.Y.2010) (it is impossible to say at this juncture that the
evidence taken together "does not support a reasonable inference
that [Defendant's] employee created the" hazardous condition)
(internal citation omitted).
Defendant has not offered an alternate theory as to how the
cans came to fall on plaintiff's head.

Assuming, arguendo, that

the cooking spray cans were on top of the stack of boxes, defendant
claims that "it is far more likely that the cooking spray package
was misplaced by a previous customer."

Reply Mem. at 5.

In

support of this proposition, defendant cites the testimony of Mr.
Caccavale who testified that it is common for customers to misplace
items in the store.

Caccavale Dep. at 59.

However, the likelihood

of a customer leaving the cooking spray cans on top of the stack of
boxes may be dependent on the height of the stack of boxes, which
is in dispute.

Again, the testimony of defendant's employees does
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not establish that defendant did not and could not have create the
alleged hazardous condition.

A jury could reasonably conclude that

defendant negligently left on top of the stack of boxes the cooking
spray cans which fell on plaintiff.

See Schneider v. Kings Highway

Hosp. Ctr. Inc., 67 N.Y.2d 743, 744-45, 490 N.E.2d 1221, 500
N.Y.S.2d 95 (1986) (finding plaintiff established prima facie case
through evidence that it was more likely that hospital worker
rather than plaintiff lowered guardrails on hospital bed); Staten
v. Pamida, 189 Ill. App.3d 125, 129 (Ill. App. Ct. 1989) (reversing
directed verdict for defendant where jury question was presented as
to whether store improperly allowed paint cans and rollers to be
displayed on top of 6 foot paint display).

While the cans arguably

could have been placed on the stack of boxes by another customer,
it is just as likely that a customer would have placed the spray
cans on the ground rather than to reach to put the cans at the top
of the stack of boxes, whether the boxes were stacked six or eight
feet high.
Alternatively, there is a genuine issue of fact as to the
applicability of the doctrine of res ipsa loquitor.

Although res

ipsa loquitor is not an independent theory of liability, it is a
"common sense application of the probative value of circumstantial
evidence."

Abbott v. Page Airways, Inc., 23 N.Y.2d 502, 512, 245

N.E.2d 388, 297 N.Y.S.2d 713 (1969).

As defendant recognizes, a

jury instruction is warranted on the theory of res ipsa loquitor
only when the plaintiff can establish "(1) the event must be of a
kind which ordinarily does not occur in the absence of someone's
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negligence; (2) it must be caused by an agency or instrumentality
within the exclusive control of the defendant; (3) it must not have
been due to any voluntary action or contribution on the part of the
plaintiff."

Ebanks v. New York City Transit Auth., 70 N.Y.2d 621,

623, 512 N.E.2d 297, 518 N.Y.S.2d 776 (1987).
Defendant argues that plaintiff cannot establish that the
cooking spray cans were within the exclusive control of the
defendant.

However, there is a genuine issue of disputed fact as

to whether the cooking spray cans were in defendant's exclusive
control.

"The requirement of exclusivity 'does not mean that the

possibility of other causes must be altogether eliminated, but only
that their likelihood must be so reduced that the greater
probability lies at defendant's door.'"

Durso v. Wal-Mart Stores,

Inc., 270 A.D.2d 877 (4th Dep't 2000) (quoting Dermatossian v. New
York City Transit Auth., 67 N.Y.2d 219, 227, 492 N.E.2d 1200, 501
N.Y.S.2d 784 (1986)).

Where customers do not have access to the

merchandise involved in an accident, the goods are within the
defendant's exclusive control.

See Fields v. King Kullen Grocery

Co., 28 A.D.3d 513, 514, 813 N.Y.S.2d 495 (2d Dep't 2006) (finding
issue of fact regarding exclusivity where shelf from which
merchandise fell on plaintiff was 6 1/2 feet above the ground and
there were no ladders or step stools that customers could use to
reach it); Durso, 270 A.D.2d at 877 (finding that res ipsa loquitor
applied where boxes stacked on a riser that was six feet off the
floor); Ciciarelli v. Ames Dept. Stores, Inc., 162 A.D.2d 996, 997,
557 N.Y.S.2d 787 (4th Dep't 1990) (affirming submission of res ipsa
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loquitor instruction where location of display, five feet above
floor level belies defendant's contention that it did not have
exclusive control over goods).

Plaintiff's testimony that the

stack of boxes reached eight feet is sufficient to raise an issue
of fact as to whether the cans were within defendant's exclusive
control.
Given the court's finding that an issue of fact exists as to
the creation of the hazardous condition, it is not necessary to
discuss actual or constructive notice.

CONCLUSION
For the foregoing reasons, Costco Wholesale Corp.'s motion for
summary judgment is denied.
SO ORDERED.

Dated:

Brooklyn, New York
March 31, 2017
/s/
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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