Rivera v. Dollar Tree Stores, Inc.

• Decision Date: 01 November 2021
• Docket Number: 20-CV-4990 (KNF)
• Parties: DAWN RIVERA, Plaintiff, v. DOLLAR TREE STORES, INC. STORE NUMBER 4388 D/B/A/ DOLLAR TREE, Defendant.
• Court: U.S. District Court — Southern District of New York

DAWN RIVERA, Plaintiff,
v.
DOLLAR TREE STORES, INC. STORE NUMBER 4388 D/B/A/ DOLLAR TREE, Defendant.

No. 20-CV-4990 (KNF)

United States District Court, S.D. New York

November 1, 2021

MEMORANDUM AND ORDER

KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

The plaintiff commenced this removed action asserting that she was caused to fall at the defendant's property “as a result of a dangerous, defective, hazardous, and unsafe condition” and sustained bodily injury as a result of the defendant's negligence. In the plaintiff's verified bill of particulars, the plaintiff asserted, inter alia, that: (i) the incident occurred on November 5, 2016; (ii) “[t]he boxes were strewn around the floor in the aisle where candy, snacks and nuts were on display”; (iii) “[a]s Plaintiff was walking through the store, she rounded the corner and tripped on one of the boxes left in the aisle along with other boxes strewn across the aisle”; and (iv) the defendant was negligent in failing “to maintain the safety of their store and allowed it to exist and remain in a dangerous, defective, hazardous and unsafe condition, ” “permitting and/or allowing a dangerous condition to exist and be on the Defendant's premise, to be and become and remain in a dangerous, unsafe, and improper condition, ” “in allowing boxes to remain strewn around one of the aisles where Plaintiff tripped and fell, ” “failing to place posted signs, warnings, barricades, cones, ropes or other devices to prevent shoppers walking up and down the aisles or from entering the unsafe area, ” “causing, permitting and/or allowing said store's floors

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to be and remain in an unsafe, improper, and dangerous condition for an unreasonable amount of time, ” “failing to remedy said dangerous condition, ” and “failing to safely remove the boxes.” Before the Court is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure opposed by the plaintiff.

DEFENDANT'S CONTENTIONS

The defendant argues that, “because the cardboard [box] was open and obvious, [the defendant] did not breach a duty to plaintiff.” The defendant asserts:

New York Courts have consistently granted-and affirmed-summary judgment for defendants because cardboard on the floor is open and obvious, and is not inherently dangerous.... The cardboard box, like those in [Boyle v Pottery Barn, 117 A.D.3d 665, 985 N.Y.S.2d 291 (2d Dep't 2014), Sosa v. RS 2001, Inc., 106 A.D.3d 720, 964 N.Y.S.2d 227 (2d Dep't 2013), Schoen v. King Kullen Grocery Co., Inc., 296 A.D.2d 486, 745 N.Y.S.2d 554 (2d Dep't 2002), and Boehme v. Edgar Fabrics, 248 A.D.2d 344, 669 N.Y.S.2d 648 (2d Dep't 1998)], was open and obvious, and not inherently dangerous condition. It was a brown box against a white floor, about 11 by 14 with the edges folded up. Plaintiff admitted in her pleadings and deposition testimony concede that the box was in plain sight. Simply put, Plaintiff was in a hurry and not paying attention to what was right in front of her As a matter of law, Dollar Tree had no duty to protect or warn her of the cardboard box-it was not inherently dangerous, and was readily observable to those who employing the reasonable use of their senses (i.e. everyone else in the aisle)

In support of its motion, the defendant submitted its attorney's declaration with exhibits and a statement pursuant to Local Civil Rule 56.1 of this court.

THE PLAINTIFF'S CONTENTIONS

The plaintiff argues that the defendant “failed to show a genuine issue of material fact did not exist as to [the plaintiff's] claim that [the defendant's] negligence created a dangerous, defective, hazardous, and unsafe condition that caused her injuries.” According to the plaintiff:

[The defendant's] motion is based on its misunderstanding of New York law concerning premises liability and [the plaintiff's] complaint.... New York law is clear that a landowner must act as a reasonable person in maintaining its property

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in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of

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