Chacko v. Costco Wholesale Corp.
| Decision Date | 22 October 2021 |
| Docket Number | 19 Civ. 8051 (GWG) |
| Parties | Viju CHACKO, Plaintiff, v. COSTCO WHOLESALE CORP., Defendant. Costco Wholesale Corp., Third-Party Plaintiff, v. Curti's Landscaping, Inc., Third-Party Defendant. |
| Court | U.S. District Court — Southern District of New York |
Jared Craig Glugeth, Raphaelson and Levine Law Firm, P.C., New York, NY, for Plaintiff.
Samuel Paul Quatromoni, Connell Foley LLP, New York, NY, Michael J. Crowley, Connell Foley LLP, New York City, NY, for Defendant/Third-Party Plaintiff.
Cristen Renee Sommers, Paul Lawrence Kassirer, Lester, Schwab, Katz and Dwyer LLP, New York, NY, for Third-Party Defendant.
Third-party defendant Curti's Landscaping, Inc. ("Curti's") has moved for summary judgment dismissing claims brought by defendant and third-party plaintiff Costco Wholesale Corporation ("Costco") for contractual indemnity, common-law indemnity, common-law contribution, and breach of contract.1 For the reasons stated below, Curti's’ motion for summary judgment is granted.
Unless otherwise stated, the following facts are not in dispute or are taken in the light most favorable to Costco, the non-moving party.
This suit arises from a slip-and-fall accident that occurred on December 17, 2018. See Notice of Removal, Exhibit A, Summons and Verified Complaint, filed August 28, 2019 (Docket # 1-1) ("Comp."). The plaintiff, Viju Chacko, was injured while walking through the parking lot of Costco's Nanuet, New York store. See Sommers Decl., Exhibit 7, at 21:16-21, 26:3-8, 27:6-20 ("Chacko Tr."). According to Chacko, she fell while walking on a "pathway" that ran through a landscaped bed in a parking lot island. See id.
This so-called "pathway" was allegedly created by pedestrians repeatedly walking through the landscaped bed, which prevented plants from growing in that area. See Sommers Decl., Exhibit 9, at 64:4-14 ("Beaudry Tr."). The "pathway" was not a designated area for customers to walk, although no prohibitory signs, warnings, or other deterrents were posted on or around it. See Sommers Decl., Exhibit 8, at 37:19-21, 39:7-25, 40:2-23, 64:9-13 ("Callahan Tr."). Chacko claims to have used the "pathway" regularly before the accident without incident, including during the week prior to her fall. Chacko Tr. 27:2-11.
The parties dispute whether Costco knew its customers used these pathways. Costco's general manager testified that he knew "people walk everywhere" and that he was "sure" he had seen someone walk over such pathways. He also testified, however, that he could not specifically recall such an occurrence. See Callahan Tr. 36:12-15, 37:2-12, 54:16-19, 60:11-17, 65:14-22, 66:2, 68:7-16. For its part, Curti's knew pedestrians used the landscaped beds "as cut throughs," Beaudry Tr. 71:16-24, but Curti's never raised the issue with Costco, see id. 78:10-25, 79:1-9, and Costco never asked. See Callahan Tr. 42:3-10.
As Chacko walked through the landscaped bed, she tripped on what she identified as a "root," see Chacko Tr. 28:4-13, which may have been the base of a juniper plant. See Beaudry Tr. 37:1-8, 66:13-16. Chacko testified she fractured her ankle
in the fall. Chacko Tr. 37:16-19.
Before the accident occurred, on January 1, 2018, Curti's entered into a contract with Costco to provide landscaping and snow removal services at Costco's Nanuet store. See Sommers Decl., Exhibit 10 ("Service Agreement"); id., Exhibit 11 ("Snow Maintenance Contract") (collectively, "the 2018 Contract"). The provisions included the following:
In a separate part of the 2018 Contract, Curti's further agreed:
Snow Maintenance Contract, at 1-2.
The contract also included an indemnification clause, which provides in relevant part:
By its terms, the 2018 Contract prohibits oral modifications and provides that it is the "final and complete agreement" between the parties. Id. at 5. Neither party contends that the 2018 Contract was modified, and uncontradicted testimony reflects that whenever Costco asked Curti's to perform work outside the bounds of the 2018 Contract, a separate agreement was prepared and executed by the parties. See Beaudry Tr. 15:12-19, 25:5-23, 40:9-18; see also Curti's 56.1 Statement ¶ 16 ( ); Costco 56.1 Statement ¶ 16 ().
In 2018, Curti's visited the Nanuet Costco once a week during the "maintenance season," which ran from April to November. Beaudry Tr. 19:4-14, 27:13-24. Each week, Curti's would cut grass, trim trees, and remove debris. See id. at 23:10-13 (). Twice during the maintenance season, Curti's would prune the plants in the landscaped beds. See id. at 27:13-25, 28:1-22. Curti's senior operations manager defined pruning as "the shaping and cutting back of [a] new growth." Id. at 32:7-8. Curti's also thinned and trimmed shrubs and ground cover in the landscaped beds. Id. at 18:9-15, 30:10-25, 31:1-24, 32:5-24, 33:6-11, 38:8-15. "Thinning" refers to cutting excessive growth from a dense plant to ensure that sufficient oxygen can reach the plant foliage. Id. at 32:9-13. "Trimming," like pruning, refers to "the shaping of the plant material." Id. at 32:14-16. According to Curti's’ uncontradicted testimony, neither pruning, nor thinning, nor trimming relate to plant roots. See id. at 32:17-20. In fact, Curti's never performed any work "with regard to plant roots" at the Nanuet Costco. See id. at 29:3-18.
With respect to the "pathway," Curti's mulched and cleaned the area in the spring and fall. See id. at 38:16-24; Snow Maintenance Contract, at 2. Curti's did not plant new ground cover or shrubs on the "pathway," nor did it remove any juniper from the landscaped bed where Chacko fell. See Beaudry Tr. 39:18-25, 40:1-8, 61:7-25, 62:1-7, 68:10-19, 73:16-21; Curti's 56.1 Statement ¶ 22; Costco 56.1 Statement ¶ 22. Curti's did not prune the sides of the juniper plants located adjacent to the "pathway" in a manner that would facilitate the "pathway's" existence. See Beaudry Tr. 63:16-25, 64:1-2. Instead, the juniper plants surrounding the "pathway" were maintained in their "natural shape." Id.
Costco performs regular inspections of its parking lot. See Callahan Tr. 19:4-9. During these inspections, Costco looks for tripping hazards and other dangerous conditions such as "snow, ice, ... pot holes, cracked curbs, corrals, [or] cart rails," and even downed trees. Id. at 19:19-25, 20:1-25, 21:2-3. Costco does not inspect the landscaped parking lot islands for "tripping hazards." Id. at 64:2-13. Under the 2018 Contract, Costco also performed internal audits during which Costco would walk the property with a Curti's representative. See Beaudry Tr. 24:18-21, 25:5-9. During some audits, Costco would request that Curti's perform additional work outside the contract, such as additional mulching or garbage pick-up. See id. at 25:5-25, 26:1-25, 27:1-9, 76:16-25, 77:1-24. On these occasions, a separate contract would be executed for the additional work. See id. 15:12-19, 25:5-23, 40:9-18; Curti's 56.1 Statement ¶ 16; Costco 56.1 Statement ¶ 16....
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