You are here: / / Restaurant Chair Collapsed: No Question of Fact About Constructive Notice...

Restaurant Chair Collapsed: No Question of Fact About Constructive Notice of Condition of the Chair/Res Ipsa Loquitur Did Not Apply

The Fourth Department, over a two-justice dissent, affirmed the grant of summary judgment to defendant restaurant owner.  A chair at the restaurant collapsed when plaintiff sat down.  The court determined the defendant did not have constructive notice of the condition of the chair and the doctrine of res ipsa loquitur did not apply:

The duty of a property owner to inspect his or her property “is measured by a standard of reasonableness under the circumstances” … .  Here, defendant testified that she wipes down the chairs at the end of each day and that, “every month or so,” she performs a “major cleaning” of the restaurant, which includes an inspection of the chairs.  In the absence of any prior complaints, incidents, accidents, or any other circumstances that should have aroused defendant’s suspicion that the chairs were defective …, we conclude that plaintiffs failed to raise a triable issue of fact concerning the reasonableness of defendant’s inspection practices, and thus whether defendant had constructive notice of the alleged defective condition of the chair.

We reject plaintiffs’ alternative contention that notice to defendant was not required because the doctrine of res ipsa loquitur applies.  That doctrine “does not apply here because, inter alia, defendant was not in exclusive control of the instrumentality that allegedly caused plaintiff’s injuries,” i.e., the chair… . Catalano v Tanner, 1087, 4th Dept 12-27-13

 

You might also like
Statement Correctly Admitted as Dying Declaration
IN THIS CHILD VICTIMS ACT ACTION, THE JUDGE CORRECTLY STRUCK INFLAMMATORY LANGUAGE FROM THE COMPLAINT BUT SHOULD NOT HAVE SEALED THE COMPLAINT WITHOUT MAKING WRITTEN FINDINGS (FOURTH DEPT).
SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED; RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL.
ALTHOUGH FATHER FAILED TO APPEAR, HIS COUNSEL APPEARED AND FATHER WAS THEREFORE NOT IN DEFAULT; BECAUSE FATHER WAS NOT IN DEFAULT, APPEAL IS NOT PRECLUDED (FOURTH DEPT).
“Door-Opening Rule” Applied to Allow Otherwise Inadmissible Evidence/Jury-Note Error Not Preserved
BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). ​
THE IMPOSITION OF TWO CONSECUTIVE PERIODS OF POSTRELEASE SUPERVISION WAS ILLEGAL (FOURTH DEPT).
PLAINTIFF DID NOT DEMONSTRATE THE CONTINUITY OF OWNERSHIP ELEMENT OF THE DE FACTO MERGER DOCTRINE SUCH THAT THE ASSETS OF ONE DEFENDANT SHOULD BE USED TO SATISFY THE DEBT OF ANOTHER (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

Conversion Cause of Action Cannot Be Based Solely Upon Allegations of Breach... Res Ipsa Loquitur Cause of Action Should Not Have Been Dismissed/Question of...