Burgess v. Costco Wholesale Corp.

OPINION AND ORDER Plaintiff Irena Burgess, proceeding pro se, sues Defendant Costco Wholesale Corporation, seeking to recover for personal injuries she suffered when she slipped and fell at the Costco in Port Chester, New York, on November 24, 2017.¹ (ECF No. 1-1 (Compl.) at

5, 10). On July 7, 2021, the parties consented to jurisdiction before a magistrate judge for all purposes, under 28 U.S.C. §636(c). (ECF No. 6 (Consent)). Costco now moves for summary judgment. (ECF No. 58 (Mot.)). For the reasons below, the motion is GRANTED. I. BACKGROUND A. Procedural History On November 6, 2020, Burgess filed this action in the New York State Supreme Court, Westchester County. (ECF No. 1-1).² On June 10, 2021, Costco removed the action to this Court on diversity grounds under 28 U.S.C. §1332(a).³ (ECF No. 1 (Notice of Removal)). In July 2021, the parties consented to jurisdiction before a magistrate judge, and this action was referred to the Hon. Paul E. Davison to conduct all proceedings. (ECF No. 6). In May 2023, this action was reassigned to the undersigned. (ECF 05/24/2023 Notice of Case Reassignment). On January 5, 2024, Costco moved for summary judgment (ECF No. 58), which Burgess opposed (ECF No. 66 (Opp.)).⁴ B. Factual Background⁵ 1. Burgess’ fall On November 24, 2017, Burgess shopped at the Costco located at 1 Westchester Ave. Port Chester, New York. (ECF Nos. 59 at 1; 82 at 1). On this date, Burgess parked her car in the Costco parking lot and walked from her car to the warehouse using the pedestrian crosswalk. (ECF Nos. 59 at 2; 82 at 2). The parties dispute whether a hole or depression existed within the crosswalk when Burgess entered Costco on that date. Costco asserts that no hole or depression existed before Burgess entered Costco. (ECF Nos. 59 at 3; 82 at 3). In support, Costco cites Burgess’ deposition testimony (ECF No. 59 at 3) that “that hole was not there. If it was there I would have seen it….” (ECF No. 60-9 at 79). But Burgess asserts that the mere fact that she did not remember a hole being there in response to a question does not establish that a hole did not exist. (ECF No. 82 at 3). In fact, Burgess submitted ten pictures from Google Maps street-view that purport to depict the Port Chester Costco property sometime in October 2017 — the month before her fall. (ECF No. 86). The pictures capture a white-painted pedestrian crosswalk and a pothole on the edge of that crosswalk. (See id.). Burgess did not hear any sounds or noises to indicate that the asphalt in the crosswalk was unstable while using the crosswalk to enter Costco. (ECF Nos. 59 at 4; 82 at 4). After Burgess completed her purchase, she walked outside with her shopping cart and into the pedestrian crosswalk towards her car. (ECF Nos. 59 at 6; 82 at 6). While crossing the walkway, Burgess’ right foot and the right wheel of her shopping cart got stuck in a hole, causing her to fall. (ECF Nos. 59 at 7; 82 at 7). The parties dispute the characterization of the events that happened here. According to Costco, the pavement suddenly collapsed, causing Burgess’ right foot and the right rear shopping cart wheel she was pushing to fall into a newly formed hole. (ECF No. 59 at 7).⁶ In support, Costco points to a portion of Burgess’ deposition where she testified that “the wheel of the shopping cart and me created the hole.” (ECF No. 60-9 at 82). Burgess explained, “when the people help[ed] me, when they tried to pick up the — and then even bigger hole. We made the bigger hole and deeper hole, so big hole.” (Id.). In contrast, Burgess disputes the characterization that she fell into a “newly formed hole.” (ECF No. 82 at 7). Instead, Burgess asserts that the hole existed before her trip to Costco that day. (Id. at 8). In support, she provides screenshots from Google Maps, which pre-date the incident by about a month, to demonstrate that the hole existed before she fell in it. Id.). But Burgess does agree with Costco that a hole in the parking lot caused her to fall. (Id. at 7). And she agrees that before her fall, she did not see what had caused her to fall. (ECF Nos. 59 at 9; 82 at 9). Also, there were no traffic cones or similar items at the location of Burgess’ fall. (ECF Nos. 59 at 10; 82 at 10).⁷ After the incident, Burgess alerted an unidentified Costco employee (who did not witness the incident) that the pavement collapsed as she walked across it. (ECF Nos. 59 at 12; 82 at 12). But according to Costco, it had not received any prior complaints about, nor had it been made aware of, any prior accidents regarding a sinkhole in this pedestrian crosswalk. (ECF No. 59 at