Ampong v. Costco Wholesale Corp.

Background

Dora Ampong brought a negligence action against Costco Wholesale Corp. after a fall near the entrance of Costco’s Port Chester warehouse. The opinion’s opening discussion describes the accident as occurring on December 19, 2019. In the factual-background section, however, the opinion refers to December 19, 2022. Ampong originally alleged that Costco and its employees negligently operated and maintained the warehouse and failed to correct dangerous conditions.

Ampong initially stated that she tripped on a rolled-up carpet. After her deposition, Costco provided her with video of the incident. The video showed her foot contacting a television display or stand and her foot touching the carpet after she fell. Ampong then amended her discovery response to state that she tripped on the television display or stand and fell onto the nearby carpet. She alleged that Costco negligently created a hazard by placing or installing the display near the warehouse doorway.

Costco’s Summary-Judgment Arguments

Costco moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is appropriate when no genuine dispute over an important fact exists and the moving party is entitled to judgment as a matter of law.

Costco argued that Ampong’s revised account violated the “sham affidavit” principle. That principle generally prevents a party from creating a factual dispute by submitting a later statement that directly contradicts earlier sworn testimony. The court agreed that Ampong’s revised theory contradicted her deposition testimony, but held that an exception applied because the video independently supported her revised account. The video made it plausible that Ampong had been mistaken about what caused her fall. The court also noted that she changed her account before discovery ended and before Costco filed its summary-judgment motion, giving Costco an opportunity to question her about the inconsistency.

Costco alternatively argued that Ampong’s original complaint did not give adequate notice that she would claim the television display caused her injury. The court rejected that argument. It concluded that the complaint’s allegations about dangerous conditions at the warehouse were broad enough to cover the display, especially because the display and carpet were near each other and Costco admitted its employee placed both items near the doorway.

Negligence Analysis

The court applied New York substantive law. Under that law, a property possessor must use reasonable care to keep its premises reasonably safe. In a slip-and-fall case, a plaintiff generally must show that the defendant created the condition that caused the accident or had actual or constructive notice of it.

Costco conceded that its employees placed the television display near the entrance. It argued that the display was not dangerous, that it was open and obvious, and that Ampong’s inattentiveness was the sole proximate cause of her injury. The court held that each argument presented a factual issue for a jury.

The court declined to rule as a matter of law that the display was not dangerous. Whether a condition is dangerous depends on the facts and circumstances, and the record included a dispute about whether the display extended beyond the wall. The court also rejected the argument that the display’s alleged visibility automatically eliminated Costco’s responsibility. An open and obvious condition may affect a plaintiff’s comparative negligence, but it does not necessarily eliminate the property owner’s duty to maintain reasonably safe premises. The court found that the facts did not require a conclusion that the display was open and obvious as a matter of law.

Finally, the court held that Ampong’s failure to look toward the area where she was walking could support a finding of comparative negligence, but did not establish that her inattentiveness was the only legal cause of the accident. The court concluded that the cause of the injury was properly left to a jury.

Disposition

The court denied Costco’s motion for summary judgment. The order did not determine that Costco was liable; it held that the disputed issues could not be resolved in Costco’s favor at the summary-judgment stage.