Costco Wasn't Negligent in Traffic Cone Mishap
(CN) - A Costco customer who hurt his shoulder while helping an employee pick up traffic cones does not have a case for negligence, the Utah Court of Appeals ruled.
The injury occurred one morning in May 2008 while Robert Proctor was waiting for the doors to open at the Costco in Murray, Utah. Jerryl Holtkamp, the store's safety coordinator, had been outside setting up traffic cones.
Holtkamp ran the wheel base she was pushing into a crack in the sidewalk, causing a stack of cones to spill to the ground. She later testified that she asked Proctor to help her lift the cones because he looked "like a weight lifter," she later testified.
The employee could not lift the cones herself because her doctor had put her on a 20-pound lifting restriction because of an elbow injury and a weak shoulder and arm. The cones weighed 12 to 20 pounds each.
Proctor testified that, leading up to the cone spillage, Holtkamp was "having a conversation" with him, "being friendly" and "possibly" flirting. He also testified that he could dead-lift 240 pounds and was aware of proper weightlifting techniques.
He allegedly lifted the cones a certain way, however, because he thought they were lightweight plastic.
Proctor says he felt a tear in his shoulder when he tried to lift the stack, and that Holtkamp then told him to be careful because the cones were heavy.
Holtkamp meanwhile maintains that she warned Proctor before he lifted the cones, and that he complained about the injury before picking the cones up.
Both agree that Holtkamp then took a couple of cones off the stack and asked Proctor to try again. He refused because he had injured his shoulder.
Proctor reported the injury to Costco management and went to the doctor. Physical therapy did not help, so Proctor underwent surgery in June 2008 for a torn labrum and a severed biceps tendon.
A judge in Salt Lake ruled for Costco, and the Utah Court of Appeals affirmed Thursday.
Proctor "cannot establish, as a matter of law, that any negligence by Costco in assigning Holtkamp the task of setting out the cones or any negligence by Holtkamp in spilling the cones was a legal, or proximate, cause of his injury," Judge Stephen Roth wrote for a three-member panel.
Costco's admission that Holtkamp should not have asked Proctor for help was also not sufficient to support a negligence claim, according to the ruling.
"Several witnesses, even Proctor himself, testified that it was not unreasonable or inappropriate, under the circumstances, for Holtkamp to ask Proctor to help pick up the cones and given that he was, of course, free to decline the request for assistance," Roth added.