Fleming v. Costco Wholesale Corporation, 1:17-cv-02878

Background

On March 7, 2016, Cicera Fleming visited a Brooklyn Costco, noticed a 4–5 inch round piece of red cake on the floor, and told a store employee; she continued shopping.
About 90 minutes later Fleming slipped and fell near the bread/produce area; she later filled out an incident report saying she slipped on something and fell on her right side.
A Costco employee (Veronica Johnson) photographed the scene and described seeing what looked like a partially eaten strawberry near where Fleming lay; Fleming later had red cake residue on her clothing and shoes.
Costco’s store practice required hourly "floor walks;" an employee’s patrol about an hour before the fall recorded no hazards.
Fleming amended her deposition by Rule 30(e) corrections and submitted affidavits after her deposition asserting she slipped on the same red cake she had reported earlier; defendant moved for summary judgment attacking causation and the admissibility/credibility of the post-deposition changes and affidavits.
The court denied summary judgment on Fleming’s actual-notice negligence claim (permitting trial on that theory), granted summary judgment dismissing the constructive-notice theory, and declined to strike the corrected testimony and affidavits (but allowed impeachment at trial).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Fleming raise a triable issue that the red cake caused her fall given Costco had actual notice of the cake?	Fleming says she slipped on the same red cake she reported earlier; post-deposition corrections and affidavits confirm cake on her clothing.	Costco says there is no admissible evidence tying the red cake to the fall (employee photo/testimony showed a strawberry) and attacks the corrected testimony/affidavits.	Denied as to actual notice: court finds sufficient evidence (residue on clothing, affidavits/corrections) to create a triable issue; case proceeds to trial on actual-notice theory.
Are Fleming’s Rule 30(e) deposition corrections and post-deposition affidavits inadmissible (to be struck) as sham or improper?	Fleming contends corrections and affidavits explain/clarify equivocal deposition testimony and align with other evidence.	Costco urges striking them as improper substantive changes and sham affidavits that contradict deposition testimony.	Corrections and affidavits are not stricken; Second Circuit authority allows Rule 30(e) changes to stand and sham-affidavit doctrine does not bar explanatory/amplifying statements. Original answers remain for impeachment.
Did Costco have constructive notice of a hazardous condition (independent of actual notice)?	Fleming argued constructive notice as alternative theory.	Costco produced evidence of hourly floor walks and an inspection shortly before the fall showing no hazards.	Granted for Costco: plaintiff abandoned the claim in briefing and, on the merits, Costco’s inspection evidence rebutted constructive notice.

Key Cases Cited

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard for genuine dispute)
Celotex Corp. v. Catrett, 477 U.S. 317 (moving party’s burden at summary judgment)
Podell v. Citicorp Diners Club, Inc., 112 F.3d 98 (Rule 30(e) corrections and use of original answers for impeachment)
Palazzo ex rel. Delmage v. Corio, 232 F.3d 38 (sham-affidavit rule described and limited)
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (affidavits that explain or amplify deposition testimony may defeat summary judgment)
Birnbaum v. New York Racing Ass’n, Inc., 57 A.D.3d 598 (defendant must show when area was last inspected to rebut constructive notice)
Morahan-Gick v. Costco Wholesale Corp., 116 A.D.3d 747 (hourly inspections can defeat constructive-notice claim)
Sloane v. Costco Wholesale Corp., 49 A.D.3d 522 (inspections shortly before incident negate constructive notice)