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FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
GREGORY JOHNSON and HELEN JOHNSON, Index No:
Purch. / E Filed:
Plaintiffs, Plaintiff Designates
NEW YORK COUNTY
as the place of trial
- against- SUMMONS WITH NOTICE
Venue is based upon defendant's
residence designation of "County of
York"
New as itsprincipal office in its
N.Y.S. Corporate Filings [BCL
§102(a)(10)].
COSTCO WHOLESALE CORPORATION,
Defendant.
X
TO THE ABOVE NAMED DEFENDANT:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer, or, ifthe complaint is not served with this summons, to serve a notice of
appearance on the plaintiff s attorney within 20 days after the service of this summons, exclusive of the
day ofservice (or within 30 days afterthe service is complete ifthis summons isnot personally delivered
to you within the State of New York); and, in the case of your failureto appear or answer, judgment will
be taken against you by default for the reliefdemanded herein.
Venue isproperly placed in New York County pursuant to C.P.L.R. §503(a)[c] on the basis of defendant
COSTCO'S"residence,"
whichis solely determined by the county designated in COSTCO'S application
York."
for authority to do business, i.e."County of New [BCL §102(a)(10)].
Defendants Addresses: Plaintiff's Attorneys:
Costco Wholesale Corporation Law Offices of Skip Alan LeBlang
- 999 Lake WA 325 Suite NY 10007
Drive, lassquah, 98027, and, Broadway, 402, NY,
- c/o CT Corporation System Skip@LeBlanelaw.com
(212) 271-0215,
28 Liberty St.,New York, NY 10005, and
- York"
"County of New as designated in itsNYS Secretary of State Filings [above]
Notice: The nature of this action is:Defendant's negligence resulting in personal .injuries to plaintiff
GREGORY JOHNSON on April; 15, 2017, and a derivative cause of action for his wife HELEN JOHNSON.
Plaintiffs reside at 126 Pawnee Street, Ronkonkoma, NY.
The reliefsought is as follows: monetary damages
UPON YOUR FAILURE TO APPEAR: Judgment will be taken against you by default r the relief
demanded in the complaint, with interest and the costs of thisaction.
Dated: New York, N.Y.
February 26, 2020
The above signatureis e cuted pursuantto NYCRR 130-
1.1a,and incorporate the certification
req iredtherein.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- X
GREGORY JOHNSON and HELEN JOHNSON, Index No:
Purch. / E Filed:
Plaintiffs
VERIFIED COMPLAINT
- against-
WWEKEMWR
COSTCO WHOLESALE CORPORATION,
Defendant.
-- - X
Plaintiffs GREGORY JOHNSON and HELEN JOHNSON as and for their verif led complaint,
by their attorneys LAW OFFICES OF SKIP ALAN LEBLANG, allege as follows upon information
and belief:
INTRODUCTION
1. This is a personal injury negligence case arising from a trip and fall at defendant's place
of busiñêss on April 14, 2017. The incident occurred when plaintiff was at the back of
defendant's retail warehouse store #206 where large bundled papers goods [stacked upon each
other in tiers] were displayed in the open sales floor upon a temporary make-shift platform
comprised of board pallets. While grabbing and retrieving a bundle of those paper towels from
the top of the stack, GREG JOHNSON caught his foot on, in and in between the low-lying boards,
him to and fall hard on his left upper - with grievous injuries.
causing trip extremity resulting
That display, together with the board stack bases which both configured itand surrounded,
created a reasonably foreseeable tripping hazard [foresecable to defendant COSTCO] that was
unsafe, hazardous and trap-like under the circmñstsñces: one where the simple act of shopping
for paper towels led to plaintiff's foot becoming ensnared in a trap of the defendant's creation. As
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detailed herein, the condition and plaintiff's consequent fall were the result of defendant's
negligence and carelessness in failing to maintaiñ its business retail property in a reasonably safe
"members."
condition for its shopping Plaintiff is seeking monetary damages for the injuries and
seqüellac that he has sustained, including multiple com-minuted and displaced fractures of the
proximal humerus, total reverse shoulder replacement, brachial plexus nerve damage, and
extended medical care.
PARTIESJURISDICTION AND VENUE
2 . Plaintiffs GREGORY JOHNSON and HELEN JOHNSON are natural persons who at all
times herein resided and still reside at 126 Pawnee Street, Ronkonkoma, New York.
3. Defendant COSTCO WHOLESALE CORPORATION [herein referred to as COSTCO],
at allrelevant times, was a Washiñgon State corporation with itsprincipal place of business at
999 Lake Drive, Issaquah, Washington 98027.
4. At alltimes herein mentioned, defendant COSTCO was a foreign corporation licensed
and authorized to transact business under and by virtue of the laws of the State of New York. In
itsapplication for authority to do such business with the New York State Secretary of State
York"
(February 2, 1990), COSTCO expressly designated the "County of New as the location of
itsprincipal office in this State..
5. Venue is properly placed in New York County pursuant to C.P.L.R. §503(a)© on the
"residence,"
basis of defendant COSTCO'S which is solely determined by the coüñty designated
York."
in COSTCO'S application for authority to do business, i.e. "County of New [BCL
§102(a)(10)].
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court has jurisdiction over the matter herein as both plaintiffs and defendant are
6. This
the State of New the action arises out of tortious acts of the defendant within
residents of York,
this State to and the claims for damages are in an amount in excess of the
causiñg injury plaintiff,
jurisdictional limits of alllower courts in which this matter could otherwise have been brought.
AS AND FOR A FIRST CAUSE OF ACTION AND CLAIM FOR RELIEF
ON BEHALF OF GREGORY JOHNSON
and re-alleges each and allegation cc·=+:4=>d in
7. Plaintiff repeats, reiterates every
"1" "6"
paragraphs through inclusive, with the same force and effect as if hereinafter set forth.
8. That at alltimes herein mentioned, defendant COSTCO owned, leased or otherwise
Box" - -
held possession of a "Big warchouse retail store designated as Costco Warehouse #206
at 3000 Middle Country Road, in Nesconset, County of Suffolk, State of New York, iñcluding the
"PFausES,"
land, the premises and structures located thereat [herein referred to as the "BIG Box
STORE,"
or "Costco Warehouse #206"].
9. That all times herein mentioned, defendant COSTCO engaged in the retail selling of
goods, wares and merchandise at the above location to those members of the public who
"privilege"
purchased private memberships and paid a special premium for the of entering the
above premises.
10. At alltimes herein mentioned, Costco Warehouse #206 was a mercantile
establishm=t and a working warehouse in which merchandise was offered on a self-service
basis, and where merchandke was largely displayed on the sales floor in the lower bay of steel
rack fixtures. In some areas of the sales floor, merchandise was displayed upon temporary
movable stack bases comprised of low-lying woodcñ board pallets.
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times herein COSTCO, controlled, operated, managed and
11. At all mentioned,
maintai=ad Costco Warehouse the retail goods offered for sale, the display
the #206, including
temporary/movable platforms on which the goods and merchandise were
fixtures and display
the or areas where the goods were received and distributed to the
presented, loading receiving
and the equipment and devices used to stock and display the merchandise.
floor,
12. At all times the above said activities took place, amang other locations, in
material,
the area of the retail sales floor at the rear of the store which was in part devoted to the sale of
large bundled paper goods, paper towels and the like. In that area, the bulk paper towels were
displayed upon the very wooden freight skids or boards on which the goods were shipped to the
Costco Warehouse #206 receiving dock.
13. At all time herein mentioned, the displays in the bulk paper goods sales area was/were
configured, arranged, situated, stocked, designed, positioned, placed, moved, meñtsiñêd, stored,
inspected, supervised, altered, changed, removed and re-arranged (as product sold off) by
COSTCO and itsservants, agents and employees, including specifically the temporary woodeñ
stack bases (comprised of board pallets) underlying the bulk paper goods merchandise.
14. More particularly, and at all times material, the board pallets on which the bulk paper
towels were merchandised and displayed were approximately 48 inches long [on the front face],
40 inches wide on the side face, about 5 inches tall, and had multiple entry openings surrounding
the entire perimeter of the board which were 12 - 14 inches wide and about 3½ to 4½ inches tall.
While these surrounding holes were for the insertion of fork lift and pallet jack tines/prongs used
in lifting and moving the bases of such merchâñdise by COSTCO and its servants, agents and
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were also the perfect size for and trapping a
employees, were openings which catching
they
merchandise from the of the stacks on top of them.
customer's foot while retrieving top display
before plaintiff GREGORY JOHNSON waS a private
15. On April 14, 2017, just noon,
member of COSTCO's was present at the premises with the knowledge,
membership, lawfully
consent of defendant was injured at the subject
permission and COSTCO, and, grievously
premises while shopping there.
16. At that plaintiff was at the back of the building where the large bundled papers
time,
goods were displayed in the open floor and in front of the steel sales racks against the walls.
While grabbing and retrieving a bundle of paper towels from the layered stack, GREG JOHNSON
caught his foot on, in and in between the stack bases of the display platform, causing him to trip
and fallhard on his left upper extremity.
17. More particularly, that display was formed from multiple low-lying board pallets on
which Bounty bundles and Kirkland bundles were separately positioned side-by-side and stacked
3 tiers and 6 tiers high - to a height of about 6 feet from
[Bounty] [Kirkland] respectively rising
the floor. As GREG JOHNSON moved toward the Kirkland display, his access was obstructed by
an empty board in front of it [no merchandise on it],forcing him to approach that display from a
different and closer position in order to collect a Kirkland bundle. That position was on the sales
"cut-out"
floor and within a recessed or area of the display where he was then surrounded on
three sides by the board stack bases [pallets] of the display. The Bounty merchandise was stacked
directly in front of plaintiff and to his left.The Kirkland paper towel bundles were stacked to his
front-right. And, along his right side was an empty board in front of the Kirkland display (without
merchandise).
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"cut-out"
18. Having been fuññeled into that area to retrieve the Kirkland bmdle, GREG
JOHNSON was uñaware that his foot was now positioned in a dangerous and unsafe gap which
had been carelessly left between the board pallets of the side-by-side displays. As he grabbed the
Kirkland bundle from the top tier and turned, his foot was caught in the unguarded side entry
of one of the board pallets exposed the space between -
opêñiñg underlying (fully by gap them)
and in the resulting fall he shattered his left upper arm.
19. In the immediate aftermath, plaintiff saw the between the underlying boards
gap
which made up the side-by-side display (@ 10 inches). He saw the large trap-like entry openings
along the front of those boards and along the.gap side where his foot had become lodged and
caught. He saw the protuding irregular boundaries of those board pallets, with broken and jagged
corners, which were initially obscured by the bundled paper towels stacked upon them.
20. At all times herein mentioned, itwas the duty of defendant COSTCO to provide a
reasonably safe retail shopping environment and to maintain the Costco Warehouse #206
property in a reasonably safe condition, in view of all the circumstances, the likelihood
including
of injury to others, the potential that any such injury would be of a serious nature, and the burden
of avoiding the risk (see Basso v Miller, 40 NY2d 233, 241, 386 NYS2d 564 [Ct. App. 1976].
That duty was specifically owed to plaintiff GREG JOHNSON and to all of its private shopping
members.
21. Defendant COSTCO's duty to plaintiff included the duty to make Costco Warehouse
#206 safe from the reasonably foreseeable hazards of and movable
using placing temporary
displays on the open sales floor - comprised of board pallets with unprotected side
low-lying
openings - and stacked with high tiers of merchandise thereon.
entry
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22. At all times material, such hazards and the risk of injury therefrom were reasonably
identifiable and understood the retail such displays -
reasonably by industry using including
defendant COSTCO itself - from available and reliable sources of data. Those
readily injury
sources included, inter alia: the officially collected and published hazard and injury data
"skid/pallet" -
[involving trip and fall injuries] of the U.S. Department of Labor Bureau of Labor
Statistics and the U.S. Consumer Product Commi cion - National Electronic
Safety Injury
Surveillance System [NEISS]; from the standards of the National Safety Council; from
COSTCO's own customer injury reports and injury data routinely collected by the company and
reported to its corporate risk management and department - the
centrally safety including
mandatory collection/reporting of such data on itsworkplace staff pursuant to OSHA rules; from
the general injury data collected and customarily compiled by other retailers in the same business;
from peer review industry safety journals, publications and texts by experts and commentators in
the retail industry; from safety and hazard management research compiled by the casualty
insurance industry for such retail operatioñs; and, from the data and research
injury supporting
defendant COSTCO's own safety rules regarding board pallets as trip hazards, COSTCO's own
structural Packaging Specifications for board pallet based merchandise and the hazards to be
protected agaiñst, and, from COSTCO's own and modular sets or
display planñiñg plan-o-grams,
similar specifications for the placement of displays, size and platform
including height, details,
floor position, and hazard and issues involved therein - such criteria to be used in
safety including
the sale of bulk paper goods as were involved in the incident complaiñed of herein.
23. That at all times herein mentioned, defendant COSTCO breached its duties owing to
plaintiff GREGORY JOHNSON, directly and vicariously, jointly and severally, through its agents,
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course and scope of their duties and employment, and was
servants, employees, all acting in the
the actions and omissions set forth below, all of which were a
careless and negligent by
cause of the incident complained of and the resulting injuries to plaintiff:
substantial contributing
in to and discern the and fall hazards and the risk of injury
failing identify trip
in the use of low-
therefrom that were understood by the retail industry
reasonably
board pallets as platforms [stack bases], with large open
lying temporary display
holes the perimeter of such boards, in the manner and under the
entry surrounding
circumstances described in to and implement a prevention
herein; failing develop
program for falls a member customer and to establish a routine business
involving
practice to investigate such incidents, data as to the location, time, age
including
and sex of the injured person, the physical conditions of the floor and
prevailing
floor operations at the time of the incident, the names of witnesses/employees who
are able to as to the condition of the floor, and photos of the area where the
testify
falloccurred to show the physical condition of the area; in failing to properly and
carefully review and monitor data to identify the causes of trip and falls
injury
board pallets used as platforms - so that incident
involving low-lying display
prevention efforts could be focused on the specific hazards so identified; in failing
to develop guidelines for the placement and arrangement of the temporary bulk
paper towel displays stacked on board pallet stack bases, nor provide any training
to itsemployees to assist in identifying the trip and fall hazards involved in such
displays; in failing to comply with industry standards to properly train staff how to
identify the hazards in the retail sales floor and specifically the use of low-lying
board display bases in the bulk papers goods area (ANSI standard Z490.1);
in negligently and carelessly designing, placing, configuring, aligning, arranging,
situating, stocking, positioning, moving, inspecting, altering, changing, removing
and re-arranging (as product is sold off) the low-lying display platform that caused
the plaintiff's fall; in configuring a display with the attendant features identified
herein which created a reasonably foreseeable tripping hazard where the simple act
of grabbing a large paper towel bundle led to plaintiff's foot becoming ensnared in
a trap of the defendant's creation; in negligently selecting the criteria, parameters
and specifications for the palletized packaging and delivery of bundled paper
towels to the Costco Warehouse #206 which were unsuitable in design, function
and purpose for such a makeshift display platform; in carelessly constructing and
configuring a temporary display platform using multiple low-lying board
pallets/skids as stack bases with edges that protruded into the sales floor, had
broken and jagged corners which were obscured in part by the very overhanging
bundles/merchandise stacked upon, were fouled with shrink wrap cordage at the
bottom of the bases where they met the floor area, had irregular boundaries with
substantial unanticipated gaps in between the board pallet stack bases of the side-
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large trap-like holes the front and sides of the wood
by-side display, and had along
sides of those bases -
stack bases which were fully exposed on the gap exactly
would position their feet in order to gather the displayed
where a shopper naturally
the platform in the open
merchandise; in positioning temporary low-lying display
of the floor but in front the lower of the ordinary steel rack
area selling of bay
sales fixtures and therein beyond the protections provided by those
ordinarily
the uniform aligament of the display with the rack edge along
fixtures, including
the regular edges, and a linear boundary of
walking aisle, non-protruding display
steel"
an "under the with the attendant visual cues to shoppers of the
display
location of the boundaries; in to protect against these trap-like
display failing
hazards available and inexpensive devices such as a pallet skirt,
by using readily
pallet guard or other named appliance to surround the perimeter of the
similarly
and cover and block the large entry openings and the sharp corner edges, so
board,
as to prevent the member customer from getting caught on/in the entry holes,
spaces and roughened edges of this low-lying display; in failing to develop and
kill"
implement a safety system which required associates to "fill or or move
merchandise to the front of the display when merchandise has sold off and the
stack base is empty or nearly so; in failing to re-arrange and move merchandise to
the front edge of the display so that the member customer could safely access the
merchandise without an extended reach for the product or the need to step onto the
stack base to reach the merchandise; in failing to timely remove an empty stack
base board where the merchandise had sold off - in a high volume
particularly
sales display, nor conduct timely inspection, monitoring, rearrangement and
removal in that sales area with the greater frequency that reasonable care required;
in leaving an empty stack base board [board pallet] on the sales floor as a trip
hazard longer than was reasonably necessary and in a position which created an
obstruction to the merchandise immediately behind it,thereby forcing the member
customer to either step on the empty board to get to that merchandise or to
navigate around itso that itcould be reached from the sales floor itself; in
operation"
implementing and maintaining a "mode of business regarding these
board pallet display bases which knowingly altered the initially configured
displays by the removal of empty boards after they were sold off, thereby
the hazards identified herein - but without
continually re-creating very safely
reconfiguring the display so that the display boundaries were straight, linear, had
uniform edge alignment, offered easy access to the merchandise, had the attendant
visual cues of where the display boundaries were, and were not unsafely
"cut-out"
protruding onto the sales floor; in creating a footprint of the display area
operation" -
by reason of empty board removal and "mode of but without timely
"cut-out" -
re-arranging the display; in creating such a and recessed display
thereby exposing the member customer (as here) to a limited pathway to the
display merchandise, surrounded on three sides by the protruding edges of the
low-lying board pallet stack bases, and where (as here) there was an unsafe gap
space left between the side-by-side stack bases of @ 10 inches to which the
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in or the member
member shopper was exposed; carelessly guiding funneling
"cut-out"
into the limited of that area (with the gap space)
customer pathway very
an stack base which obstructed the front of the Kirkland display
by leaving empty
forced the member shopper into that area; in stacking the Kirkland
and which
height [6 tiers - greater than
paper towels on the sales
Preview
FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X GREGORY JOHNSON and HELEN JOHNSON, Index No: Purch. / E Filed: Plaintiffs, Plaintiff Designates NEW YORK COUNTY as the place of trial - against- SUMMONS WITH NOTICE Venue is based upon defendant's residence designation of "County of York" New as itsprincipal office in its N.Y.S. Corporate Filings [BCL §102(a)(10)]. COSTCO WHOLESALE CORPORATION, Defendant. X TO THE ABOVE NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer, or, ifthe complaint is not served with this summons, to serve a notice of appearance on the plaintiff s attorney within 20 days after the service of this summons, exclusive of the day ofservice (or within 30 days afterthe service is complete ifthis summons isnot personally delivered to you within the State of New York); and, in the case of your failureto appear or answer, judgment will be taken against you by default for the reliefdemanded herein. Venue isproperly placed in New York County pursuant to C.P.L.R. §503(a)[c] on the basis of defendant COSTCO'S"residence," whichis solely determined by the county designated in COSTCO'S application York." for authority to do business, i.e."County of New [BCL §102(a)(10)]. Defendants Addresses: Plaintiff's Attorneys: Costco Wholesale Corporation Law Offices of Skip Alan LeBlang - 999 Lake WA 325 Suite NY 10007 Drive, lassquah, 98027, and, Broadway, 402, NY, - c/o CT Corporation System Skip@LeBlanelaw.com (212) 271-0215, 28 Liberty St.,New York, NY 10005, and - York" "County of New as designated in itsNYS Secretary of State Filings [above] Notice: The nature of this action is:Defendant's negligence resulting in personal .injuries to plaintiff GREGORY JOHNSON on April; 15, 2017, and a derivative cause of action for his wife HELEN JOHNSON. Plaintiffs reside at 126 Pawnee Street, Ronkonkoma, NY. The reliefsought is as follows: monetary damages UPON YOUR FAILURE TO APPEAR: Judgment will be taken against you by default r the relief demanded in the complaint, with interest and the costs of thisaction. Dated: New York, N.Y. February 26, 2020 The above signatureis e cuted pursuantto NYCRR 130- 1.1a,and incorporate the certification req iredtherein. 1 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - X GREGORY JOHNSON and HELEN JOHNSON, Index No: Purch. / E Filed: Plaintiffs VERIFIED COMPLAINT - against- WWEKEMWR COSTCO WHOLESALE CORPORATION, Defendant. -- - X Plaintiffs GREGORY JOHNSON and HELEN JOHNSON as and for their verif led complaint, by their attorneys LAW OFFICES OF SKIP ALAN LEBLANG, allege as follows upon information and belief: INTRODUCTION 1. This is a personal injury negligence case arising from a trip and fall at defendant's place of busiñêss on April 14, 2017. The incident occurred when plaintiff was at the back of defendant's retail warehouse store #206 where large bundled papers goods [stacked upon each other in tiers] were displayed in the open sales floor upon a temporary make-shift platform comprised of board pallets. While grabbing and retrieving a bundle of those paper towels from the top of the stack, GREG JOHNSON caught his foot on, in and in between the low-lying boards, him to and fall hard on his left upper - with grievous injuries. causing trip extremity resulting That display, together with the board stack bases which both configured itand surrounded, created a reasonably foreseeable tripping hazard [foresecable to defendant COSTCO] that was unsafe, hazardous and trap-like under the circmñstsñces: one where the simple act of shopping for paper towels led to plaintiff's foot becoming ensnared in a trap of the defendant's creation. As 2 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 detailed herein, the condition and plaintiff's consequent fall were the result of defendant's negligence and carelessness in failing to maintaiñ its business retail property in a reasonably safe "members." condition for its shopping Plaintiff is seeking monetary damages for the injuries and seqüellac that he has sustained, including multiple com-minuted and displaced fractures of the proximal humerus, total reverse shoulder replacement, brachial plexus nerve damage, and extended medical care. PARTIESJURISDICTION AND VENUE 2 . Plaintiffs GREGORY JOHNSON and HELEN JOHNSON are natural persons who at all times herein resided and still reside at 126 Pawnee Street, Ronkonkoma, New York. 3. Defendant COSTCO WHOLESALE CORPORATION [herein referred to as COSTCO], at allrelevant times, was a Washiñgon State corporation with itsprincipal place of business at 999 Lake Drive, Issaquah, Washington 98027. 4. At alltimes herein mentioned, defendant COSTCO was a foreign corporation licensed and authorized to transact business under and by virtue of the laws of the State of New York. In itsapplication for authority to do such business with the New York State Secretary of State York" (February 2, 1990), COSTCO expressly designated the "County of New as the location of itsprincipal office in this State.. 5. Venue is properly placed in New York County pursuant to C.P.L.R. §503(a)© on the "residence," basis of defendant COSTCO'S which is solely determined by the coüñty designated York." in COSTCO'S application for authority to do business, i.e. "County of New [BCL §102(a)(10)]. -2- 3 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 court has jurisdiction over the matter herein as both plaintiffs and defendant are 6. This the State of New the action arises out of tortious acts of the defendant within residents of York, this State to and the claims for damages are in an amount in excess of the causiñg injury plaintiff, jurisdictional limits of alllower courts in which this matter could otherwise have been brought. AS AND FOR A FIRST CAUSE OF ACTION AND CLAIM FOR RELIEF ON BEHALF OF GREGORY JOHNSON and re-alleges each and allegation cc·=+:4=>d in 7. Plaintiff repeats, reiterates every "1" "6" paragraphs through inclusive, with the same force and effect as if hereinafter set forth. 8. That at alltimes herein mentioned, defendant COSTCO owned, leased or otherwise Box" - - held possession of a "Big warchouse retail store designated as Costco Warehouse #206 at 3000 Middle Country Road, in Nesconset, County of Suffolk, State of New York, iñcluding the "PFausES," land, the premises and structures located thereat [herein referred to as the "BIG Box STORE," or "Costco Warehouse #206"]. 9. That all times herein mentioned, defendant COSTCO engaged in the retail selling of goods, wares and merchandise at the above location to those members of the public who "privilege" purchased private memberships and paid a special premium for the of entering the above premises. 10. At alltimes herein mentioned, Costco Warehouse #206 was a mercantile establishm=t and a working warehouse in which merchandise was offered on a self-service basis, and where merchandke was largely displayed on the sales floor in the lower bay of steel rack fixtures. In some areas of the sales floor, merchandise was displayed upon temporary movable stack bases comprised of low-lying woodcñ board pallets. -3- 4 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 times herein COSTCO, controlled, operated, managed and 11. At all mentioned, maintai=ad Costco Warehouse the retail goods offered for sale, the display the #206, including temporary/movable platforms on which the goods and merchandise were fixtures and display the or areas where the goods were received and distributed to the presented, loading receiving and the equipment and devices used to stock and display the merchandise. floor, 12. At all times the above said activities took place, amang other locations, in material, the area of the retail sales floor at the rear of the store which was in part devoted to the sale of large bundled paper goods, paper towels and the like. In that area, the bulk paper towels were displayed upon the very wooden freight skids or boards on which the goods were shipped to the Costco Warehouse #206 receiving dock. 13. At all time herein mentioned, the displays in the bulk paper goods sales area was/were configured, arranged, situated, stocked, designed, positioned, placed, moved, meñtsiñêd, stored, inspected, supervised, altered, changed, removed and re-arranged (as product sold off) by COSTCO and itsservants, agents and employees, including specifically the temporary woodeñ stack bases (comprised of board pallets) underlying the bulk paper goods merchandise. 14. More particularly, and at all times material, the board pallets on which the bulk paper towels were merchandised and displayed were approximately 48 inches long [on the front face], 40 inches wide on the side face, about 5 inches tall, and had multiple entry openings surrounding the entire perimeter of the board which were 12 - 14 inches wide and about 3½ to 4½ inches tall. While these surrounding holes were for the insertion of fork lift and pallet jack tines/prongs used in lifting and moving the bases of such merchâñdise by COSTCO and its servants, agents and -4- 5 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 were also the perfect size for and trapping a employees, were openings which catching they merchandise from the of the stacks on top of them. customer's foot while retrieving top display before plaintiff GREGORY JOHNSON waS a private 15. On April 14, 2017, just noon, member of COSTCO's was present at the premises with the knowledge, membership, lawfully consent of defendant was injured at the subject permission and COSTCO, and, grievously premises while shopping there. 16. At that plaintiff was at the back of the building where the large bundled papers time, goods were displayed in the open floor and in front of the steel sales racks against the walls. While grabbing and retrieving a bundle of paper towels from the layered stack, GREG JOHNSON caught his foot on, in and in between the stack bases of the display platform, causing him to trip and fallhard on his left upper extremity. 17. More particularly, that display was formed from multiple low-lying board pallets on which Bounty bundles and Kirkland bundles were separately positioned side-by-side and stacked 3 tiers and 6 tiers high - to a height of about 6 feet from [Bounty] [Kirkland] respectively rising the floor. As GREG JOHNSON moved toward the Kirkland display, his access was obstructed by an empty board in front of it [no merchandise on it],forcing him to approach that display from a different and closer position in order to collect a Kirkland bundle. That position was on the sales "cut-out" floor and within a recessed or area of the display where he was then surrounded on three sides by the board stack bases [pallets] of the display. The Bounty merchandise was stacked directly in front of plaintiff and to his left.The Kirkland paper towel bundles were stacked to his front-right. And, along his right side was an empty board in front of the Kirkland display (without merchandise). -5- 6 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 "cut-out" 18. Having been fuññeled into that area to retrieve the Kirkland bmdle, GREG JOHNSON was uñaware that his foot was now positioned in a dangerous and unsafe gap which had been carelessly left between the board pallets of the side-by-side displays. As he grabbed the Kirkland bundle from the top tier and turned, his foot was caught in the unguarded side entry of one of the board pallets exposed the space between - opêñiñg underlying (fully by gap them) and in the resulting fall he shattered his left upper arm. 19. In the immediate aftermath, plaintiff saw the between the underlying boards gap which made up the side-by-side display (@ 10 inches). He saw the large trap-like entry openings along the front of those boards and along the.gap side where his foot had become lodged and caught. He saw the protuding irregular boundaries of those board pallets, with broken and jagged corners, which were initially obscured by the bundled paper towels stacked upon them. 20. At all times herein mentioned, itwas the duty of defendant COSTCO to provide a reasonably safe retail shopping environment and to maintain the Costco Warehouse #206 property in a reasonably safe condition, in view of all the circumstances, the likelihood including of injury to others, the potential that any such injury would be of a serious nature, and the burden of avoiding the risk (see Basso v Miller, 40 NY2d 233, 241, 386 NYS2d 564 [Ct. App. 1976]. That duty was specifically owed to plaintiff GREG JOHNSON and to all of its private shopping members. 21. Defendant COSTCO's duty to plaintiff included the duty to make Costco Warehouse #206 safe from the reasonably foreseeable hazards of and movable using placing temporary displays on the open sales floor - comprised of board pallets with unprotected side low-lying openings - and stacked with high tiers of merchandise thereon. entry -6- 7 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 22. At all times material, such hazards and the risk of injury therefrom were reasonably identifiable and understood the retail such displays - reasonably by industry using including defendant COSTCO itself - from available and reliable sources of data. Those readily injury sources included, inter alia: the officially collected and published hazard and injury data "skid/pallet" - [involving trip and fall injuries] of the U.S. Department of Labor Bureau of Labor Statistics and the U.S. Consumer Product Commi cion - National Electronic Safety Injury Surveillance System [NEISS]; from the standards of the National Safety Council; from COSTCO's own customer injury reports and injury data routinely collected by the company and reported to its corporate risk management and department - the centrally safety including mandatory collection/reporting of such data on itsworkplace staff pursuant to OSHA rules; from the general injury data collected and customarily compiled by other retailers in the same business; from peer review industry safety journals, publications and texts by experts and commentators in the retail industry; from safety and hazard management research compiled by the casualty insurance industry for such retail operatioñs; and, from the data and research injury supporting defendant COSTCO's own safety rules regarding board pallets as trip hazards, COSTCO's own structural Packaging Specifications for board pallet based merchandise and the hazards to be protected agaiñst, and, from COSTCO's own and modular sets or display planñiñg plan-o-grams, similar specifications for the placement of displays, size and platform including height, details, floor position, and hazard and issues involved therein - such criteria to be used in safety including the sale of bulk paper goods as were involved in the incident complaiñed of herein. 23. That at all times herein mentioned, defendant COSTCO breached its duties owing to plaintiff GREGORY JOHNSON, directly and vicariously, jointly and severally, through its agents, -7- 8 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 course and scope of their duties and employment, and was servants, employees, all acting in the the actions and omissions set forth below, all of which were a careless and negligent by cause of the incident complained of and the resulting injuries to plaintiff: substantial contributing in to and discern the and fall hazards and the risk of injury failing identify trip in the use of low- therefrom that were understood by the retail industry reasonably board pallets as platforms [stack bases], with large open lying temporary display holes the perimeter of such boards, in the manner and under the entry surrounding circumstances described in to and implement a prevention herein; failing develop program for falls a member customer and to establish a routine business involving practice to investigate such incidents, data as to the location, time, age including and sex of the injured person, the physical conditions of the floor and prevailing floor operations at the time of the incident, the names of witnesses/employees who are able to as to the condition of the floor, and photos of the area where the testify falloccurred to show the physical condition of the area; in failing to properly and carefully review and monitor data to identify the causes of trip and falls injury board pallets used as platforms - so that incident involving low-lying display prevention efforts could be focused on the specific hazards so identified; in failing to develop guidelines for the placement and arrangement of the temporary bulk paper towel displays stacked on board pallet stack bases, nor provide any training to itsemployees to assist in identifying the trip and fall hazards involved in such displays; in failing to comply with industry standards to properly train staff how to identify the hazards in the retail sales floor and specifically the use of low-lying board display bases in the bulk papers goods area (ANSI standard Z490.1); in negligently and carelessly designing, placing, configuring, aligning, arranging, situating, stocking, positioning, moving, inspecting, altering, changing, removing and re-arranging (as product is sold off) the low-lying display platform that caused the plaintiff's fall; in configuring a display with the attendant features identified herein which created a reasonably foreseeable tripping hazard where the simple act of grabbing a large paper towel bundle led to plaintiff's foot becoming ensnared in a trap of the defendant's creation; in negligently selecting the criteria, parameters and specifications for the palletized packaging and delivery of bundled paper towels to the Costco Warehouse #206 which were unsuitable in design, function and purpose for such a makeshift display platform; in carelessly constructing and configuring a temporary display platform using multiple low-lying board pallets/skids as stack bases with edges that protruded into the sales floor, had broken and jagged corners which were obscured in part by the very overhanging bundles/merchandise stacked upon, were fouled with shrink wrap cordage at the bottom of the bases where they met the floor area, had irregular boundaries with substantial unanticipated gaps in between the board pallet stack bases of the side- -8- 9 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 large trap-like holes the front and sides of the wood by-side display, and had along sides of those bases - stack bases which were fully exposed on the gap exactly would position their feet in order to gather the displayed where a shopper naturally the platform in the open merchandise; in positioning temporary low-lying display of the floor but in front the lower of the ordinary steel rack area selling of bay sales fixtures and therein beyond the protections provided by those ordinarily the uniform aligament of the display with the rack edge along fixtures, including the regular edges, and a linear boundary of walking aisle, non-protruding display steel" an "under the with the attendant visual cues to shoppers of the display location of the boundaries; in to protect against these trap-like display failing hazards available and inexpensive devices such as a pallet skirt, by using readily pallet guard or other named appliance to surround the perimeter of the similarly and cover and block the large entry openings and the sharp corner edges, so board, as to prevent the member customer from getting caught on/in the entry holes, spaces and roughened edges of this low-lying display; in failing to develop and kill" implement a safety system which required associates to "fill or or move merchandise to the front of the display when merchandise has sold off and the stack base is empty or nearly so; in failing to re-arrange and move merchandise to the front edge of the display so that the member customer could safely access the merchandise without an extended reach for the product or the need to step onto the stack base to reach the merchandise; in failing to timely remove an empty stack base board where the merchandise had sold off - in a high volume particularly sales display, nor conduct timely inspection, monitoring, rearrangement and removal in that sales area with the greater frequency that reasonable care required; in leaving an empty stack base board [board pallet] on the sales floor as a trip hazard longer than was reasonably necessary and in a position which created an obstruction to the merchandise immediately behind it,thereby forcing the member customer to either step on the empty board to get to that merchandise or to navigate around itso that itcould be reached from the sales floor itself; in operation" implementing and maintaining a "mode of business regarding these board pallet display bases which knowingly altered the initially configured displays by the removal of empty boards after they were sold off, thereby the hazards identified herein - but without continually re-creating very safely reconfiguring the display so that the display boundaries were straight, linear, had uniform edge alignment, offered easy access to the merchandise, had the attendant visual cues of where the display boundaries were, and were not unsafely "cut-out" protruding onto the sales floor; in creating a footprint of the display area operation" - by reason of empty board removal and "mode of but without timely "cut-out" - re-arranging the display; in creating such a and recessed display thereby exposing the member customer (as here) to a limited pathway to the display merchandise, surrounded on three sides by the protruding edges of the low-lying board pallet stack bases, and where (as here) there was an unsafe gap space left between the side-by-side stack bases of @ 10 inches to which the -9- 10 of 17 FILED: NEW YORK COUNTY CLERK 02/26/2020 02:42 PM INDEX NO. 152106/2020 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 02/26/2020 in or the member member shopper was exposed; carelessly guiding funneling "cut-out" into the limited of that area (with the gap space) customer pathway very an stack base which obstructed the front of the Kirkland display by leaving empty forced the member shopper into that area; in stacking the Kirkland and which height [6 tiers - greater than paper towels on the sales