The Appellate Division, First Department, just issued a Decision that reflects a law in New York that surprises many personal injury victims, but which is well known to personal injury attorneys that have to deal with it on a daily basis.
In the story told in D’Ippolito v. Shop-Rite Supermarkets, http://www.nycourts.gov/reporter/3dseries/2014/2014_01577.htm, a woman was shopping in a Shop Rite supermarket when all of a sudden a frozen turkey fell from a display bin onto her foot. The knee jerk reaction to such a scenario is to blame the supermarket, after all, this happened in their store. However, the law in New York looks a bit deeper. It is apparent from the decision that the reason the turkey fell was because it was “hanging over the front lip of the turkey bin”. The Court wanted to know why it was hanging there. Did a Shop Rite employee put it there? Based on the facts of the case, which were not related in the decision, the Court found that the store’s employees don’t hang turkeys this way, and didn’t here. Even though this defective condition was present in the store, the store was not responsible since there was no proof they, as opposed to a customer who possibly took the turkey out and shoved it back in the wrong spot, caused the condition. This wasn’t the end of the analysis, though. Even if the store’s employees didn’t put the turkey there, the store could still be responsible if they knew, or should have known, that the turkey was hanging there. Apparently, the Plaintiff could not prove that the store should have known. Therefore, the case against the supermarket was dismissed.
