You are here: / / PLAINTIFF WAS KNOCKED TO THE FLOOR BY A SHOPPING CART PUSHED BY ANOTHER...
,

PLAINTIFF WAS KNOCKED TO THE FLOOR BY A SHOPPING CART PUSHED BY ANOTHER STORE CUSTOMER; THE DEFENDANT STORE DID NOT HAVE A DUTY TO MONITOR CUSTOMERS’ USE OF SHOPPING CARTS; ISSUE COULD BE CONSIDERED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff was knocked to the floor by a shopping cart pushed by another customer in the defendant’s store. Apparently the customer had piled items high in the cart and couldn’t see ahead of it. The court noted that, although defendant raised the “no duty to monitor customers” issue for the first time on appeal, it could be considered because it raises an issue of law than could not have been avoided by the court below:

The defendant contends that it was entitled to summary judgment dismissing the complaint insofar as asserted against it because it did not have a duty to control the conduct of the customer who struck Novak with the shopping cart. Although the defendant has raised this contention for the first time on appeal, “we may consider it . . . because the existence of a duty presents a question of law which could not have been avoided if brought to the Supreme Court’s attention at the proper juncture”… .

“Store owners are charged with the duty of keeping their premises in a reasonably safe condition for the benefit of their customers” … . “[T]his duty may extend to controlling the conduct of third persons who frequent or use the property, at least under some circumstances” … . “This duty is, however, not limitless” … . “[A]n owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control” … .

Here, the plaintiff contends that the defendant was negligent in failing to monitor its customers’ use of the U-boat shopping carts and, more specifically, in failing to require customers to refrain from loading the carts over a certain height. However, the defendant did not owe the plaintiff a duty to protect her from the other customer’s negligent use of the U-boat shopping cart because it did not have control over that customer’s actions … . Aupperlee v Restaurant Depot, LLC, 2019 NY Slip Op 08548, Second Dept 11-27-19

 

You might also like
TRIAL JUDGE’S FAILURE TO WARN DEFENDANT OF THE CONSEQUENCES OF DISRUPTIVE BEHAVIOR BEFORE REMOVING DEFENDANT FROM THE COURTROOM WAS REVERSIBLE ERROR.
“Lack of Standing” Defense Waived by Not Asserting It In the Answer—“Lack of Standing” Not a Jurisdictional Defect—Sua Sponte Dismissal for “Lack of Standing” Not Warranted
UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE PEOPLE DID NOT DISPROVE DEFENDANT’S AGENCY DEFENSE; THE VERDICT WAS REPUGNANT IN THAT GUILTY AND NOT GUILTY FINDINGS CAN NOT BE RECONCILED (SECOND DEPT).
PLAINTIFF WAS INJURED WHILE ON THE GROUND CUTTING A TREE, BECAUSE GRAVITY WAS NOT INVOLVED LABOR LAW 240 (1) DID NOT APPLY, BUT BECAUSE CUTTING THE TREE WAS ANCILLARY TO WORK ON A STRUCTURE, LABOR LAW 241 (6) DID APPLY (SECOND DEPT).
MORTGAGES ISSUED BY NYS FEDERAL CREDIT UNIONS ARE NOT EXEMPT FROM NYS MORTGAGE RECORDING TAX (SECOND DEPT).
Father’s Petition to Relocate to North Carolina Properly Denied
CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT).
THE DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THERE WAS A NONNEGLIGENT EXPLANATION FOR STRIKING PLAINTIFF’S VEHICLE (SECOND 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

PARKER WARNINGS WERE INADEQUATE BUT THE ERROR WAS NOT PRESERVED FOR APPEAL;... PLAINTIFFS, PASSENGERS IN A CAR WITH THE RIGHT OF WAY, WERE ENTITLED TO SUMMARY...