Chacko v. Costco Wholesale Corporation

Background

Viju Chacko sued Costco Wholesale Corporation after allegedly slipping or tripping on a root or plant base while walking through a landscaped bed in the parking lot of Costco’s Nanuet, New York store. Costco then brought Curti’s Landscaping, Inc. into the case as a third-party defendant. Costco asserted claims for contractual indemnification, common-law indemnification, common-law contribution, and breach of contract.

Curti’s had contracted with Costco to provide landscaping and snow-removal services. The contract required Curti’s to maintain plants and ground cover neatly, perform specified pruning, trimming, thinning, cleaning, and mulching work, and obtain insurance naming Costco as an additional insured. The contract also contained an indemnification clause covering certain injuries arising from Curti’s services or from Curti’s breach of the contract.

The court considered Curti’s motion for summary judgment. Summary judgment is a decision without a trial when the evidence shows that no genuine dispute of an important fact requires a jury’s decision and the moving party is entitled to judgment under the law.

Contractual indemnification

Costco argued that Curti’s breached the contract by failing to address the root or plant base on which Chacko allegedly tripped. The court construed Costco’s argument as relying on the provision requiring lawn, trees, shrubs, and ground cover to be “neatly maintained.”

Reading that provision in the context of the entire contract, the court held that “neatly maintained” referred to keeping the landscaping aesthetically pleasing, not to guaranteeing its safety or removing exposed plant roots or bases. The contract’s more specific duties concerned activities such as pruning, trimming, thinning, mowing, raking, weeding, and removing loose or damaged plant material. The court noted that the undisputed testimony showed that pruning, trimming, and thinning did not involve cutting plant roots or established plant bases.

The court found no evidence from which a reasonable jury could conclude that Curti’s violated the contract by leaving the root or plant base exposed. It therefore held that Curti’s did not fail to perform its landscaping obligations in the area where Chacko fell, and that Chacko’s injury did not result from Curti’s contractual duties. The court granted Curti’s motion for summary judgment dismissing Costco’s contractual indemnification claim.

Common-law indemnification

Common-law indemnification, also called implied indemnity, can shift a loss to the party responsible for the injury. To prevail, Costco needed to show, among other things, that Curti’s was negligent or exercised actual supervision or control over the work that caused the injury.

Costco argued that a jury could find that Curti’s acted negligently or created or increased a danger. The court found that Costco presented no evidence that Curti’s was negligent, created the condition involving the juniper, or made the condition more dangerous. The court also held that Costco failed to establish that Curti’s owed Chacko a duty of care under the applicable exceptions for contractors who perform services for another party.

The court granted Curti’s motion for summary judgment dismissing Costco’s common-law indemnification claim.

Common-law contribution

The court held that a contribution claim requires proof that the party from whom contribution is sought breached a duty owed to the injured person. Because the court had found that Curti’s owed no duty to Chacko and Costco did not oppose Curti’s argument on contribution, the court granted Curti’s motion for summary judgment dismissing Costco’s common-law contribution claim.

Breach of contract based on insurance

Costco also claimed that Curti’s breached the contract by failing to obtain the required insurance coverage and name Costco as an additional insured. Curti’s submitted a certificate of insurance listing Costco as an additional insured and asserted that it had obtained the required coverage.

The court accepted that an insurance certificate is not conclusive proof that the required coverage existed. But Costco still had the burden to produce evidence showing that Curti’s failed to obtain the required insurance. Costco offered no evidence supporting that allegation. The court therefore granted Curti’s motion for summary judgment dismissing Costco’s breach of contract claim.

Disposition

Judge Gabriel W. Gorenstein granted Curti’s motion for summary judgment dismissing all of Costco’s third-party claims. The opinion addressed Costco’s claims against Curti’s and did not decide Chacko’s underlying negligence claim against Costco.