Orlando Rivera v. ShopRite of Bruckner Boulevard et al.
Attorneys and Parties
Brief Summary
Premises liability in a retail grocery setting: injury allegedly caused by a defective shopping cart and the requirements to prove actual or constructive notice; applicability of res ipsa loquitur.
The Supreme Court, Bronx County, denied the defendant’s motion for summary judgment dismissing the complaint.
The Appellate Division reversed and granted summary judgment to the defendant, dismissing the complaint.
Defendant made a prima facie showing of no actual or constructive notice of any defect through routine inspections and absence of prior similar incidents; plaintiff failed to raise a triable issue; res ipsa loquitur did not apply because the cart was not in defendant’s exclusive control.
Background
Plaintiff alleged that while shopping he pulled a grocery cart from the front and the cart suddenly tipped to the side. Attempting to catch it, he was injured. After the incident, he observed that the cart’s front bottom frame was broken and claimed the frame failed under a normal load due to a defect. The store manager testified that regular inspections did not reveal defective carts and there were no prior similar accidents. Plaintiff also testified the cart worked without issue for about 20 minutes and he had no prior complaints at the store.
Lower Court Decision
The Supreme Court, Bronx County (Bianka Perez, J.), denied the motion of Village Super Market of NY LLC d/b/a ShopRite of Bruckner Boulevard for summary judgment dismissing the complaint, allowing the case to proceed.
Appellate Division Reversal
The Appellate Division unanimously reversed, granted the motion, and directed entry of judgment for defendant. The Court held defendant established prima facie lack of actual or constructive notice by evidence of regular inspections and no history of similar incidents, supported by plaintiff’s own testimony that the cart functioned for approximately 20 minutes beforehand (see Cataldo v Waldbaum, Inc., 244 AD2d 446, 447 [2d Dept 1997]; Cheeseman v Inserra Supermarkets, 174 AD2d 956, 958 [3d Dept 1991]). While plaintiff adequately identified the condition (see Haibi v 790 Riverside Dr. Owners, Inc., 156 AD3d 144, 147 [1st Dept 2017]), he failed to raise a triable issue of notice. Res ipsa loquitur was inapplicable because the cart was not in defendant’s exclusive control—plaintiff was using it and carts were generally available to customers (see Pinto v Little Fish Corp., 273 AD2d 63, 63 [1st Dept 2000]; Loiacono v Stuyvesant Bagels, Inc., 29 AD3d 537, 538 [2d Dept 2006]).
Legal Significance
The decision clarifies that in New York premises liability actions involving customer-use equipment (such as shopping carts), a retailer can secure summary judgment by demonstrating lack of actual or constructive notice through routine inspections and absence of prior complaints or incidents. Plaintiff’s identification of a defect, without notice evidence, is insufficient. Res ipsa loquitur generally will not apply where the instrumentality is not in the defendant’s exclusive control due to open customer use.
Regular inspection protocols and a clean incident history can defeat premises liability claims premised on sudden equipment failure; res ipsa loquitur will not salvage a claim where customers, rather than the store, exercise immediate control over the instrumentality.