United States District Court, D. Minnesota
S. WILLEMS, TEWKSBURY & KERFELD P.A., FOR PLAINTIFF.
L. MARSHALL, BASSFORD REMELE P.A., FOR DEFENDANT.
MEMORANDUM OPINION & ORDER
R. TUNHEIM CHIEF JUDGE
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'S ACCIDENT
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.)
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.)
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
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.)
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.)
COSTCO'S SAFETY PROCEDURES AND STORE CONDITIONS
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.)
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. ¶ 5; Checklist at 2-3.)
Lessley did not report any issues on the section of the
safety inspection sheet reserved for documentation of