Anastasios BOUTSIS, Plaintiff-Appellant, v. The HOME DEPOT, Defendant-Appellee, 371 F. App'x 142

SUMMARY ORDER Plaintiff-appellant, Anastasios Boutsis, filed the underlying action in the Supreme Court of New York, Kings County, and the defendant removed the case to federal court in December 2005. Plaintiff asserted a claim for negligence in connection with an accident that occurred at defendant-appellee’s store in Brooklyn. The parties consented to have a magistrate judge conduct all proceedings pursuant to 28 U.S.C. § 636(

c) and agreed that the case is governed by New York law. Plaintiff now appeals from the judgment of the district court, granting

summary judgment for the defendant. Plaintiffs claim arises from an incident that occurred when he was shopping for a snow blower. Plaintiff selected a snow blower and removed it from a waist-high shelf by holding the sides of the box and hugging it to his body, rather than lifting the box by its handles. As he was putting the box in his shopping cart, the machine fell through the bottom and landed on his foot, injuring his toe.

Plaintiff contends that Home Depot did not follow its policy of requiring salespeople to instruct customers not to remove heavy items from shelves by themselves, and that there were no signs posted warning customers not to do so. Plaintiff argues that the defendant negligently maintained a dangerous condition on its property since it stacked boxes in such a way that customers might injure themselves by removing the boxes improperly.

In order to succeed in a premises liability claim under New York law, a plaintiff must demonstrate both the existence of a dangerous or defective condition and that the defendant either created the condition or had actual or constructive knowledge of the condition and failed to correct it. Hascup v. Hascup, 969 F.Supp. 851, 853 (N.D.N.Y.1997), citing Lowrey v. Cumberland Farms, Inc., 162 A.D.2d 777, 557 N.Y.S.2d 689, 690 (3d Dep’t 1990). The district court granted defendant’s motion for

summary judgment, finding that while plaintiff had produced sufficient evidence to permit a reasonable jury to find the existence of a dangerous condition, he had not shown either that Home Depot was responsible for the condition or that it had notice of the condition. The district court rejected plaintiffs argument that Home Depot’s official policy of instructing customers not to remove heavy boxes from shelves without assistance demonstrated its knowledge of a dangerous condition, finding that plaintiff had no evidence that Home Depot in fact had such a policy. We review a

summary judgment award de novo, “examining the facts in the light most favorable to the non-moving party and resolving all factual ambiguities in that party’s favor.” Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir.2009).

Summary judgment is proper only “if there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Genuine issues of material fact exist as to whether Home Depot maintained a policy of warning customers to seek assistance before attempting to remove heavy boxes from shelves. The testimony of Home Depot employee Elizabeth Mona-han, a salesperson in the gardening department, concerning the policy of the store is inconsistent.

While Monahan at one point in her deposition testified that she was instructed to remove items from shelves for customers only when they did not volunteer to do so themselves, she also stated that she had been told by Home Depot to warn customers not to take snow blowers down from the shelves themselves to prevent injury. In light of this inconsistency, the district court was wrong to conclude that there was no evidence that Home Depot had notice of a dangerous condition and to grant

summary judgment on this basis. Since we find that plaintiff has adduced evidence sufficient to permit a x-easonable jury to conclude that Home Depot had actual notice of a dangerous condition in its store, we need not reach plaintiffs arguments that Home Depot could be found by a jury to have either created the dangerous condition or to have had constructive knowledge of the condition. Defendant argues that plaintiff caused his own injury by lifting the box from its sides, rather than by using the box’s handles, thereby causing the snow blower to fall out of the bottom of the box.

It claims that since the risk associated with improperly handling a box is readily discernible to an ordinary person, it had no duty to eliminate the risk or to warn customers of it. We are not fully persuaded that the danger presented by picking up a box from its sides is open and obvious as a matter of law. However, even if the danger of this action were open and obvious, this merely eliminates the property owner’s duty to warn and does not eliminate its duty to maintain its premises in a reasonably safe condition. See Cupo v. Karjunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40, 43 (2d Dep’t 2003).

To the extent that defendant suggests that it should be relieved of liability because of plaintiffs negligence in handling the box, it is clear under New York law that the issue of comparative negligence is a question of fact proper for determination by a jury. Tuthill v. United States, 270 F.Supp.2d 395, 399 (S.D.N.Y. 2003) (“It is well settled that comparative negligence must be determined by a jury, and therefore cannot be decided on a

summary judgment motion.”), citing Louise B.G. v. New York City Bd. of Educ., 143 A.D.2d 728, 533 N.Y.S.2d 293, 295 (2d Dep’t 1988). Plaintiff additionally argues in his briefs and at oral argument that defendant is liable for selling a defective product, since it failed to detect that the box was unsafe and since this could have been discovered during a reasonable physical inspection, citing Naples v. City of New York, 34 A.D.2d 577, 309 N.Y.S.2d 663 (2d Dep’t 1970). This argument was never made to the district court, and thus we have not considered it. See Westinghouse Credit Corp. v.

D’Urso, 371 F.3d 96, 103 (2d Cir.2004) (“In general we refrain from passing on issues not raised below.”). For the foregoing reasons, the judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this order.