Michalski v. The Home Depot

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-7849
• Citation: 225 F.3d 113
• Parties: (2nd Cir. 2000) JACQUELINE E. MICHALSKI, Plaintiff-Appellant, v. THE HOME DEPOT, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 113

225 F.3d 113 (2nd Cir. 2000)

JACQUELINE E. MICHALSKI, Plaintiff-Appellant, v. THE HOME DEPOT, INC., Defendant-Appellee.

Docket No. 99-7849

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: January 21, 2000

Decided: August 21, 2000

Plaintiff Jacqueline E. Michalski appeals from a grant of summary judgment entered June 15, 1999 in the United States District Court for the Northern District of New York (Scullin, J.) in favor of defendant The Home Depot, Inc.

Reversed and remanded.

KRISHNA K. SINGH, Amsterdam, New York (Horigan, Horigan & Lombardo, P.C., Amsterdam, New York; Aulisi & Skoda, Gloversville, New York, of counsel), for Plaintiff-Appellant.

JESSICA DESANY, Albany, New York (James A. Resila, Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C., Albany, New York, of counsel), for Defendant-Appellee.

Before: CARDAMONE, LEVAL,¹ and PARKER, Circuit Judges.

CARDAMONE, Circuit Judge:

Plaintiff, a first-time shopper in a store owned by defendant Home Depot, tripped and fell there. The sole issue presented is whether an object on defendant's premises that is open and obvious may present a risk of injury to plaintiff so as to make defendant liable in damages. In construing the New York law that governs this diversity case, the district court ruled that defendant could not be liable as a matter of law for injuries arising from a fall over an object that was open and obvious.

We read this record and New York law somewhat differently than did the district court, which granted defendant's motion for summary judgment. The trial court believed the accident occurred as the result of the presence of a large forklift truck in the aisle where plaintiff shopped. Plaintiff alleges she was injured when she tripped over a four-inch pallet resting on the forks of the truck, an object that may not have been open and obvious. A jury could reasonably believe under the circumstances of this case that as plaintiff walked down the aisle she did not see the pallet because the body of the forklift blocked it from her sight. Further, even if a jury finds the pallet to have been open and obvious, we believe that New York law imposed a duty of care on Home Depot if the hazardous nature of the pallet was readily foreseeable and Home Depot had reason to know that its customers might not expect, or be distracted from observing, the hazard. Accordingly, we reverse the grant of summary judgment.

BACKGROUND

On February 18, 1997 plaintiff Jacqueline Michalski, a New York State resident, tripped and fell over a pallet resting on the forks of a forklift truck at the Home Depot store in Schenectady, New York. She claims serious injuries from the fall.

Home Depot, a Delaware corporation with its principal place of business in Georgia, sells building materials, tools, lumber, and other home improvement items. Its popularity stems in part from the "hands-on" feeling of shopping in a working warehouse environment, with goods displayed on shelves and racks that in some places reach up to 20 feet above the floor. In keeping with the idea that the store is a working warehouse, the practice at Home Depot is for a forklift operator to leave the forklift wherever it happens to be when the employee has finished using it, parked to one side in the same aisles down which customers walk. A pallet left on one of these parked forklifts was the culprit in the accident that occurred in this case.

Home Depot filed a statement of material facts in the trial court pursuant to the Northern District of New York's local rules, to which Michalski did not respond. Hence, the factual assertions in Home Depot's statement are uncontested. See N.D.N.Y. Local R. 7.1(a)(3); Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (per curiam). The issue before us then is how the relevant law applies to these facts.

Michalski entered the Home Depot intent on purchasing bathroom cabinets. A store employee directed her toward the appropriate aisle. Plaintiff turned left into the aisle indicated, and noticed the cabinets she sought above eye-level on the left side of the aisle. As she proceeded down the aisle, she walked by the parked forklift on her right. The back of the forklift - the side without the forks - faced her as she entered the aisle and as she walked past it. The forklift is eight to ten feet tall, and five or six feet wide. Sitting on the forks side of the forklift away from plaintiff was a brown pallet, at floor level. The pallet is four feet wide, four feet long, and four inches high. As Michalski looked up at the cabinets she planned to purchase, she stepped back for a better view, and in so doing tripped over the pallet and fell.

Michalski filed suit against Home Depot in New York State Supreme Court for Montgomery County on February 26, 1998 claiming that Home Depot was negligent in creating a dangerous and hazardous condition and in failing to warn persons lawfully on the premises of the hazardous condition. Home Depot removed the case from state to federal court on April 13, 1998, and after discovery moved for summary judgment.

In granting that motion, the district court observed that plaintiff "ha[d] raised no question of material fact as to whether the forklift was readily observable" and found that "the presence of the forklift was an open and obvious condition." It reasoned that the case involved two principles of premises liability: the duty to keep premises reasonably free of dangerous conditions and the duty to warn of such conditions when they are open and obvious. After deciding that the New York Court of Appeals has not spoken to whether the open and obvious nature of a hazardous condition negates the liability of a landowner who knew of or had created the dangerous condition, the district court applied to the facts before it a decision of the Appellate Division, Third Department, where Schenectady, the scene of this mishap, is located. Under that decision the trial court concluded that a condition that is open and obvious eliminates landowner liability. Thus, it granted summary judgment to Home Depot, from which judgment Michalski appeals.

DISCUSSION

I "Open and Obvious" Conditions Under New York Law

A. Standard of Review

We review a grant of summary judgment de novo, see First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 165 (2d Cir. 1998), and, in this diversity case, apply New York law. Even though the facts are uncontested, we nonetheless view them in the light most favorable to, and draw inferences in favor of, the non-moving party, here plaintiff Michalski. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997). The question is whether New York law imposes a duty of care upon the owner of a place of business to protect or warn a visitor who encounters an open and obvious hazard, when the owner has created the hazard and has reason to foresee that a customer might be distracted from observing it. The New York Court of Appeals has not had occasion to write on this issue.

Absent law from a state's highest court, a federal court sitting in diversity has to predict how the state court would resolve an ambiguity in state law. In determining how the Court of Appeals would rule on this legal question, the decisions of New York State's Appellate Division are helpful indicators. See In re Brooklyn Navy Yard Asbestos Litig. (Joint E. & S. Dist. Asbestos Litig.), 971 F.2d 831, 850 (2d Cir. 1992). The holding of "an intermediate appellate state court ... is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." West v. AT&T, 311 U.S. 223, 237 (1940). Other data include relevant case law from other jurisdictions on the same or analogous issues, scholarly writings in the field, and any other resources available to the state's highest court. See Leon's Bakery, Inc. v. Grinnell Corp., 990 F.2d 44, 48 (2d Cir. 1993).

Because of an apparent split in authority among the Appellate Divisions (discussed below), the district court decided to follow the law of the Third Department, reasoning that this was the law that would have been applied in the state trial court in the district where this accident occurred and where the suit was originally filed. As appealing as this notion might be as a means of deciding what law to apply, taking this shortcut led to the wrong result. Instead, the proper approach was for the trial court - through an examination of New York and, if necessary, other jurisdictions' case law - to have essayed a prediction on whether the New York Court of Appeals would rule that the open and obvious nature of a hazard precludes landowner liability. To this task we now turn.

B. Premises Liability Under New York Law

New York law holds that a landowner must exercise reasonable care to maintain its premises in a safe condition in view of the circumstances, accounting for the possibility of injury to others, the seriousness of such injury, and the burden of avoiding such risk. See Basso v. Miller, 40 NY2d 233, 241 (1976). Or, as famously stated by Chief Judge Cardozo, "[t]he risk reasonably to be perceived defines the duty to be obeyed." Palsgraf v. Long Island R.R., 248 N.Y. 339, 344 (1928). Foreseeability of a risk arising from a potential plaintiff's presence on defendant's property is the measure of liability, and it is the essential factor in determining the nature and scope of the duty that the landowner owes plaintiff. See Kush v. City of Buffalo, 59 NY2d 26, 29-30 (1983); Basso, 40 NY2d at 241.

Michalski claims that Home Depot created a dangerous condition by leaving the forklift parked in the aisle with a pallet on its forks, failed to protect her from or warn her of such dangerous condition, and is therefore liable for her fall. Home Depot counters that while it is responsible for leaving the forklift in the...