Tango v. Costco Wholesale Corp.
Decision Date | 19 January 2021 |
Docket Number | 19-CV-483(SJF)(ARL) |
Parties | CATHIA TANGO, Plaintiff, v. COSTCO WHOLESALE CORP., Defendant. |
Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
I. Introduction
On or about December 17, 2018, plaintiff Cathia Tango ("plaintiff" or "Tango") commenced this personal injury action in the Supreme Court of the State of New York, County of Queens (the "state court"), against defendant Costco Wholesale Corp. ("defendant" or "Costco"), seeking, inter alia, damages for personal injuries she allegedly sustained as a result of defendant's negligence. On January 24, 2019, defendant filed a notice of removal pursuant to 28 U.S.C. § 1441, removing the action to this Court based upon the Court's diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a). Pending before the Court is defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff's claims in their entirety with prejudice. For the reasons set forth below, defendant's motion is granted. II. Background
Plaintiff went to the Lawrence Costco on May 16, 2017, (56.1 Stat., ¶ 1 )2, and was shopping in the aisle with the refrigerator coolers a little before 6:00 p.m. (Id., ¶ 2). Plaintiff was able to see the display inside the coolers, which contained glass doors. (Id.)
One (1) cooler, which had a glass door with a handle on the left side of the frame, contained Kraft American Cheese. (56.1 Stat., ¶ 3). Each individual cheese package contained a block of ninety-six (96) slices (the "cheese packages") and was in a cardboard box containing multiple cheese packages, with the boxes stacked on top of each other, forming columns. (Id., ¶ 4; Declaration of Allison C. Liebowitz, Esq. in Support of Motion for Summary Judgment ["Liebowitz Decl."], Ex. G at 35:23-36:2). There were two (2) rows of boxes stacked four (4) high, (56.1 Stat., ¶ 4), and the front of the boxes was partially open so that members could get the cheese packages from them. (Liebowitz Decl., Ex. F at 21:13-17 and Ex. F-1). Plaintiff allegesthat she was injured when she opened the door of that cooler and three (3) cheese packages fell on her face and arm, (see Id., Ex. D(A)); and that "the improper stacking of the boxes containing the cheese is what caused the cheese to fall out and strike Plaintiff." (Plaintiff's Memorandum of Law in Opposition to Motion for Summary Judgment [] at 5).
Plaintiff opened the cooler door with her right hand without incident, and reached into the cooler before the accident. (56.1 Stat., ¶ 9). Approximately two (2) seconds later, three (3) packages of cheese fell from the top and landed in her shopping cart, which was to her left. (Id.) Plaintiff kept two (2) of those packages to purchase. (Id.) Plaintiff claims that she did not touch any boxes containing cheese packages before the three (3) cheese packages allegedly fell. (Id., ¶ 10).
Before opening the glass door, plaintiff looked in the cooler to see how the cheese was stacked, (56.1 Stat., ¶ 6), and observed that the boxes containing the cheese packages that were on top were not full. (Id., ¶ 7). The Kraft American Cheese is a high selling item and stock sells quickly. (Id.) Plaintiff did not see any issues which led her to conclude that there was a safety hazard, (id., ¶ 8), but testified that "the boxes were together . . . like pushing down towards each other, almost lopsy [sic], lopsided and facing out towards [her]," i.e., the boxes were tilted in towards each other and forward, although none of them were touching the door. (Liebowitz Decl., Ex. F at 22:4-23:21). When asked how much leaning she noticed before putting her hand on the handle of the door, plaintiff replied: (Id. at 23:22-25). Plaintiff observed the boxes of cheese stacked similarly on prior occasions and previously selected Kraft cheese packages from the cooler without incident. (56.1 Stat., ¶ 11). Cheese has never fallen out of the cooler previously. (Id.)
Kevin Altman ("Altman"), who was the front end manager at the Lawrence Costco on the date of the accident, (56.1 Stat., ¶ 12), testified: (i) that the cardboard boxes do not get any condensation in them, nor did they produce condensation, (Liebowitz Decl., Ex. G at 38:11-39:5); (ii) that the cases "remain as sturdy regardless of how long they have been in the refrigerator for," (Id. at 40:9-12); and (iii) that he never "had a situation where a box that something is stacked on in the refrigerator section begins to sag" as a result of either condensation or excess weight bearing upon it. (Id. at 40:13-21).
Plaintiff advised Altman of the alleged accident about forty (40) minutes after it occurred, first completing her shopping and paying for her merchandise. (56.1 Stat., ¶ 13). Altman testified that after plaintiff reported the accident, he went to the cooler and "saw the Kraft American single cheese stacked in the refrigerator . . . in a normal saleable condition," meaning that "it was properly stocked without any disarray," meaning there were "no boxes out of place." (Liebowitz Decl., Ex. G at 60:10-61:2). Altman further testified that he "saw nothing that would pose a threat to anyone's safety." (Id. at 84:15-18).
On the date of the alleged accident, Costco Member Services employees conducted floor walks of the Lawrence Costco every hour, which included monitoring temperatures in the coolers every two (2) hours, as well as monitoring the overall safety of the sales floor every hour. (56.1 Stat., ¶ 15). If something is observed to be out of place during the floor walks, the Member Services employee is expected to put the item in its proper place; and if an item is not stocked safely, it is brought to the attention of a senior manager who would rectify the issue. (Id.) In addition, Costco employees assigned to the refrigeration area are constantly removing boxes and coming and going from the area. (Id., ¶ 19). If anything is observed to be out of place, it wouldbe remedied. (Id.) Moreover, all Costco employees are trained to be on the lookout for safety hazards. (Id., ¶ 16).
Defendant's "Daily Floor Walk Report" for the date of the accident indicates, inter alia, that the subject cooler was last inspected between 5:05 and 5:30 p.m., i.e., approximately twenty-five (25) to fifty (50) minutes prior to the accident. (Liebowitz Decl., Ex. D(B) and Ex. G at 84:22-85:21).
Mahendra Ramsaywack ("Ramsaywack"), a Member Services employee at the Lawrence Costco on the date of the accident, (Liebowitz Decl., Ex. H, ¶¶ 1, 3), asserts (i) that he performed floor walks at 3:00 p.m., 4:00 p.m. and 5:00 p.m. on the date of the accident3; and (ii) that the 3:00 p.m. and 5:00 p.m. floor walks included temperature checks for the cooler containing Kraft American Cheese and no issues were noted. (Id., ¶¶ 5-6; see also Id., Ex. D(B)).
Rodney Stewart ("Stewart"), also a Member Services employee at the Lawrence Costco on the date of the accident, (Liebowitz Decl., Ex. I, ¶¶ 1, 3), asserts (i) that he performed floor walks at 6:00 p.m. and 7:00 p.m. on the date of the accident; (ii) that the 6:00 p.m. floor walk began at 6:05 p.m.; and (iii) that he inspected the coolers containing Kraft American Cheese at approximately 6:15-6:20 p.m. (Id., ¶¶ 5-6; see also Id., Ex. D(B)).
Ramsaywack and Stewart both further assert (i) that during the floor walks, the stock in the coolers is checked "to ensure that it is neat and safe," and if anything is out of place, "it would be addressed immediately and noted in the action log," (Liebowitz Decl., Ex. H, ¶ 7; Ex. I, ¶ 7); (ii) that no issues were noted on the date of the accident, (id., Ex. H, ¶ 7; Ex. I, ¶ 7; see also Id., Ex. D(B)); (iii) that they never observed Kraft American Cheese stacked in the mannerdepicted in the photographs provided by plaintiff, or they "would have reported it immediately," (id., Ex. H, ¶¶ 8-9; Ex. I, ¶¶ 8-9); and (vi) that during the time that they worked at the Lawrence Costco, they never became aware "of any other accidents involving Kraft American Cheese falling out of the cooler." (Id., Ex. H ¶ 11; Ex. I, ¶ 11).
On or about December 17, 2018, plaintiff commenced this action in the state court against defendant seeking, inter alia, damages for personal injuries she allegedly sustained as a result of defendant's negligence. On January 24, 2019, defendant filed a notice of removal pursuant to 28 U.S.C. § 1441, removing the action to this Court based upon the Court's diversity of citizenship jurisdiction under 28 U.S.C. § 1332(a). Issue was joined by the service of an answer on behalf of defendant on January 28, 2019.
Defendant now moves, following the close of discovery, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff's claims in their entirety with prejudice.
III. Discussion4
"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.'" ING Bank N.V. v. M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P.56(a)); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In ruling on a summary judgment motion, the district court must first "determine whether there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007); see also Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658, 2677, 174 L. Ed. 2d 490 (2009) . "A fact is material if it might affect the outcome of the suit under the governing law." Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 25 (2d Cir. 2015).
In reviewing the...
To continue reading
Request your trial