Dolishnya v. Costco Wholesale Corp., 1:13-cv-00388

Plaintiff Nadiya Dolishnya was struck in the forehead by two cans of cooking spray that fell from the top of a shoe-display stack while she removed a shoe box at a Costco Staten Island warehouse after Thanksgiving.
Plaintiff observed employees earlier setting up the shoe display with a forklift; at the time of the accident the stacked display was disputedly six to eight feet high and packaged cooking spray was on top of the stack.
Plaintiff testified she did not see the cans before they fell and that customers could not have reached the top of the display; multiple customers were handling the display when the cans fell.
Costco employees testified about routine practices: displays generally stacked no higher than six feet, hourly "floor walks" inspections are performed and documented, and customers sometimes misplace items.
Costco moved for summary judgment arguing it neither created the hazard nor had actual or constructive notice; plaintiff relied on circumstantial evidence and res ipsa loquitur to oppose summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did defendant create the hazardous condition?	Circumstantial evidence (employees set up display; cans found on top of high stack; customers could not have placed them) supports inference Costco created the condition.	No direct evidence Costco placed the cans; customers commonly misplace items; routine inspections would have revealed issues.	Genuine dispute: circumstantial evidence sufficient to let a jury infer Costco created the hazard.
Was the cooking-spray package within defendant's exclusive control (res ipsa loquitur)?	Stack height (plaintiff: eight feet) and lack of customer access support exclusivity.	Customers could have misplaced items; exclusivity not established.	Genuine issue of fact as to exclusivity; res ipsa instruction appropriate for jury consideration.
Did plaintiff have to show actual or constructive notice?	Plaintiff argues creation/inference and res ipsa eliminate need to show notice.	Costco argues lack of notice and absence of evidence it placed the cans.	Because issues exist as to creation and exclusivity, court did not reach notice; summary judgment denied.
Is summary judgment appropriate?	Plaintiff met burden to create triable issue through circumstantial evidence.	Defendant argues alternative explanations and inspection evidence warrant judgment for Costco.	Denied: reasonable juror could find for plaintiff; issues of fact preclude summary judgment.

Celotex Corp. v. Catrett, 477 U.S. 317 (establishes summary judgment burden-shifting framework)
Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard; genuine issue for trial)
Dillon v. Rockaway Beach Hosp. & Dispensary, 284 N.Y. 176 (circumstantial evidence can establish causation)
Abbott v. Page Airways, Inc., 23 N.Y.2d 502 (res ipsa loquitur explained as probative value of circumstantial evidence)
Williams v. KFC Nat'l Mgmt. Co., 391 F.3d 411 (plaintiff need only establish reasonable probability that defendant's negligence caused accident)