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Pett v. Costco Wholesale Corp.

United States District Court, D. Minnesota

July 22, 2019

KRISTIN PETT, Plaintiff,





         Plaintiff Kristin Pett brought this negligence action against Defendant Costco Wholesale (“Costco”) after sustaining permanent injuries during a slip and fall incident at Costco's store in Eden Prairie, Minnesota. Costco removed the case to federal court and now moves for summary judgment. Because the Court finds that genuine issues of material fact remain as to whether Costco met the duty it owed to Pett on the day of her fall, the Court will deny Costco's motion for summary judgment.



         Kristin Pett is a resident of Eden Prairie, MN. (Aff. of Kyle S. Willems (“Willems Aff.”) ¶ 6, Ex. E (“K. Pett Dep.”) at 4, Jan. 10, 2019, Docket No. 28-5.) She has a mild cognitive disability but is fairly independent in day-to-day life. (See Willems Aff. ¶ 8, Ex. G (“E. Pederson Dep.”) at 8-9, Docket No. 28-7.) She is married to Justin Pett. (K. Pett Dep. at 5.)

         On the morning of Sunday, May 22, 2016, the Petts went to a Costco store in Eden Prairie with Mrs. Pett's parents, William and Elaine Pederson. (E. Pederson Dep. at 11.) The Petts and Pedersons shop at the same Costco store approximately once a month. (Id.) They report that their Costco store tends to be busiest on Saturdays and Sundays, and is particularly busy on “sample days, ” when Costco employees serve samples of food and drink throughout the store. (Aff. of William Pederson (“W. Pederson Aff.”) ¶ 3, Jan. 10, 2019, Docket No. 30; Aff. of Kristin Pett (“K. Pett Aff.”) ¶ 5, Jan. 10, 2019, Docket No. 32.) May 22, 2016, was a sample day. (W. Pederson Aff. ¶ 3.)

         The Pedersons completed their own shopping and then returned to their car in the Costco parking lot to wait for the Petts, who were still inside. (E. Pederson Dep. at 11.) When the Petts approached the cash register to check out, a Costco employee told them they could get two plants in addition to the six already in their cart at no additional cost. (K. Pett Dep. at 13.) While Mr. Pett held their spot at the cash register, Mrs. Pett walked quickly back to the area where the plants were located, which was on a stand in a side aisle between a freezer and a cooler. (Id. at 14; Aff. of Jeff Goto (“Goto Aff.”) ¶ 10, Ex. B at 4, Dec. 21, 2019, Docket No. 23-1.) After picking up two plants from the plant stand, Mrs. Pett began making her way back toward her husband at the cash register. (K. Pett. Dep. at 15.)

         At approximately 11:46 a.m., Mrs. Pett walked out of the side aisle where the plants were located toward the main aisle with one plant in each hand. (Decl. of Andrew L. Marshall ¶ 10, Ex. I at 11:46:16-46:18, Dec. 21, 2018, Docket No. 21-3.) As she turned into the main aisle, Mrs. Pett slipped, fell, and fractured her right ankle. (Id. 11:46:19; K. Pett. Dep. at 15.) It is not clear whether Mrs. Pett saw the water on the floor before she fell. (See K. Pett. Dep. at 15, 21.) She saw a puddle of liquid after the fall but does not remember exactly how large the puddle was. (K. Pett. Dep. at 15.) There was no cone or other warning sign near the puddle. (K. Pett Aff. ¶ 7.) A photo taken shortly after the accident shows what appears to be a small puddle of clear liquid next to the location where she slipped. (K. Pett Dep. at 34.) The photo also shows a smear through the liquid, possibly made by Mrs. Pett's foot as she slipped. (Id.) The location of the fall was about 10 to 15 feet away from the plant stand and next to a garbage can. (Goto Aff. ¶ 10 & Ex. B.) Following the fall, several employees and customers came to Mrs. Pett's aid. (K. Pett Dep. at 30.)

         As a result of her accident at Costco, Mrs. Pett sustained permanent injuries, has incurred major medical expenses, has endured a great deal of pain, has missed work, and has been unable to participate in the many activities that she used to enjoy. (Notice of Removal ¶ 1, Ex. B (“Compl.”) at 1, Jan. 9, 2018, Docket No. 1-2; K. Pett Dep. at 17-19, 24-29; E. Pederson Dep. at 16-17; W. Pederson Dep. at 10.)


         To help protect customers from safety hazards, Costco trains its employees to recognize and report or repair unsafe conditions. (Willems Aff. ¶ 4, Ex. C (“Goto Dep.”) at 30, 56, Docket No. 28-3.) Employees are required to conduct hourly “floorwalks, ” where they visually inspect the aisles of the store for safety hazards, shoplifters, and other problems. (Id. at 29; Willems Aff. ¶ 7, Ex. F (“Lessley Dep.”) at 6, Docket No. 28-6.) In areas with freezers or coolers, employees also check temperatures as they conduct floorwalks. (Lessley Dep. at 6-7.) If an employee finds a hazard, including liquid on the floor, he or she must remedy the hazard or mark it while going to get help. (Id. at 8; Goto Dep. at 30-31.) Likewise, if a plant rack has recently been watered, employees may place a warning sign or cone near it in addition to looking for water on the floor. (Lessley Dep. at 8; Willems Aff. ¶ 2, Ex. A (“Craig Dep.”) at 15, Docket No. 28-1.) Employees use a checklist during floorwalks to mark start and end times and to indicate that each zone was checked for hazards. (Goto Dep. at 29-30, 34.) The floorwalk checklist is signed by a manager after completion. (Id. at 29.)

         On the morning of Mrs. Pett's accident, Costco employee Ken Lessley conducted a floorwalk during the 11:00 hour. (Aff. of Ken Lessley (“Lessley Aff.”) ¶ 4, Dec. 21, 2018, Docket No. 22.) Lessley began the floorwalk at approximately 11:02 AM and finished at 11:48 AM. (Id. & Ex. A (“Checklist”) at 2, Docket No. 22-1.) The two-page safety inspection sheet used by Lessley during the floorwalk included two places, one on each page, to record a start time and two places, one on each page, to record an end time. (Checklist at 2-3.) Lessley recorded the start time on both pages but recorded the end time only on the second page. (Id.) He also recorded the temperatures of the store's freezers and coolers during the walk. (Lessley Aff. ΒΆ 5; Checklist at 2-3.) Lessley did not report any issues on the section of the safety inspection sheet reserved for documentation of hazards. ...

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