Pinero v. Rite Aid of New York, Inc.

294 A.D.2d 251, 743 N.Y.S.2d 21, 2002 N.Y. App. Div. LEXIS 5544
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 28, 2002
StatusPublished
Cited by30 cases

This text of 294 A.D.2d 251 (Pinero v. Rite Aid of New York, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pinero v. Rite Aid of New York, Inc., 294 A.D.2d 251, 743 N.Y.S.2d 21, 2002 N.Y. App. Div. LEXIS 5544 (N.Y. Ct. App. 2002).

Opinion

—Order, Supreme» Court, New York County (Diane Lebedeff, J.), entered April 4, 2000, which granted defendant’s motion for summary judgment, dismissing the complaint, affirmed, without costs.

The facts are fairly straightforward. While shopping in defendant’s store, plaintiff wanted to get several boxes of macaroni and cheese, but found the aisle where they were located completely blocked by a metal wagon on wheels filled with merchandise that was being stacked on the shelves by an assistant manager named “Chris.” At plaintiffs request, Chris retrieved three boxes of macaroni, which he grasped in one hand, and attempted to pass them to plaintiff across the top of the wagon. Before he could deliver the boxes into plaintiffs hands, he lost his grip and the boxes fell. Plaintiff alleges that she tried to grab the boxes while they were falling “in order to stop them from striking” her, that her knee then struck the wheeled wagon, causing it to move and plaintiff to lose her balance and fall, striking her head on some shelving and thereby sustaining her injuries.

The IAS court granted defendant’s motion for summary judgment, holding that there was no duty owed to plaintiff since the wagon was in plain view and there was no hazardous condi[252]*252tion presenting a foreseeable danger. The court further found that “Making the record as a whole, the isolated action of the assistant manager in dropping the macaroni boxes is an insufficient basis for a negligence claim as a matter of law.” We agree.

To establish a claim in negligence, plaintiff must show that the defendant owed her a duty to protect her from injury; a duty that only arises when the risk of harm is reasonably foreseeable (see, Palsgraf v Long Is. R.R. Co., 248 NY 339, 344). Foreseeability of risk is an essential element of a negligence cause of action because a person can only be “negligent” when the event giving rise to the injury could have been reasonably anticipated—and thus avoided with the exercise of appropriate care (see, Di Ponzio v Riordan, 89 NY2d 578, 583). Thus, the risk of injury as a result of defendant’s conduct must not be merely possible, it must be natural or probable. As the Court of Appeals has instructed, “although virtually every untoward consequence can theoretically be foreseen ‘with the wisdom born of the event’ * * *, the law draws a line between remote possibilities and those that are reasonably foreseeable because ‘[n]o person can be expected to guard against harm from events which are * * * so unlikely to occur that the risk * * * would commonly be disregarded.’ ” (Di Ponzio, 89 NY2d at 583, quoting Greene v Sibley, Lindsay & Curr Co., 257 NY 190, 192 and Prosser and Keeton, Torts § 31, at 170 [5th ed].) Questions of foreseeability are for the court to determine as a matter of law when there is only a single inference that can be drawn from the undisputed facts (Pepic v Joco Realty, 216 AD2d 95).

While property owners and business proprietors have a duty to maintain their premises in reasonably safe condition (Di Ponzio v Riordan, 89 NY2d 578, 582; Basso v Miller, 40 NY2d 233), which duty includes eliminating, protecting against, or warning of dangerous, defective, or otherwise hazardous conditions, there is no duty to protect or warn against conditions that are in plain view, open, obvious, and readily observable by those “employing the reasonable use of their senses.” (Tarricone v State of New York, 175 AD2d 308, 309, lv denied 78 NY2d 862; see also, Poerio v State of New York, 144 AD2d 129, 131.) In those circumstances, the condition is a warning in itself (Tarricone, 175 AD2d at 309).

Although the complaint alleged that, on the day of the accident, “there existed a dangerous, defective, encumbered, obstructed, hazardous, traplike and unsafe condition” in the store, in opposing defendant’s motion for summary judgment, plaintiff acknowledged that the wagon in the aisle was in plain [253]*253view, open and obvious, and, on appeal, plaintiff specifically disavows that her claim is based on the existence of an unsafe condition, contending, instead, that it was the negligent actions of the assistant manager that caused her injuries.

Under the circumstances of this case, we regard the risk of danger in the assistant manager’s act of passing the macaroni boxes over the half-filled wagon as minimal and unforeseeable as a matter of law. The two cases relied on by plaintiff do not support a contrary decision. Coyle v Staples, Inc. (268 AD2d 500, lv denied 95 NY2d 751) involved a plaintiff who was injured when a box fell from a shelf and hit her on the head. Similarly, the plaintiff in Bachand v Daniel Reeves, Inc. (279 NY 179) was injured by a box that fell on her foot. Plaintiff here was not injured by boxes falling on her, but, rather, as was the case with Mrs. Palsgraf, by a sequence of events that could not reasonably have been foreseen or protected against.

The dissent agrees that the wagon in the aisle was “readily observable and did not, in and of itself, present a foreseeable danger to a customer who was aware of its presence” and that the assistant manager’s act of handing grocery items to plaintiff would not constitute a hazard. Nonetheless, the dissent argues that the actions of defendant’s employee in dropping the boxes of macaroni while attempting to hand them across the wagon to plaintiff distracted plaintiff from the open and obvious hazard and “lured her into close proximity to it.” As an initial matter, plaintiff made no claim nor offered any evidence that she was distracted from the presence of the wagon. Indeed, it is hard to imagine how she could have been so distracted since the wagon was but six inches in front of her and she bumped into it while in the process of trying to catch the boxes. Moreover, the dissent does not explain why the obvious wagon was even a hazard.

The dissent appears to believe that the confluence of the presence of the obvious wagon and the employee’s dropping of the boxes—neither of which, the dissent agrees, provides a basis for liability standing alone—combined with the fact that plaintiff was injured provide a sufficient basis to submit the case to the jury. In our view, this reasoning presents the kind of “wisdom bom of the event” that the Court of Appeals warned against in Di Ponzio and Greene. Were this the case, every injury would constitute proof of its own foreseeability.

Michalski v Home Depot, Inc. (225 F3d 113 [2d Cir 2000]), cited by the dissent, presents an interesting theory of negligence liability, but one that we do not view as applicable to the present case. Unlike the pallet that tripped the plaintiff in [254]*254Michalski, the wagon in this case did not cause plaintiffs injuries. Moreover, in Michalski, Home Depot had arranged its warehouse-store premises in such a way as to make it foreseeable that a customer, looking up at merchandise on high shelves, could become distracted from obstacles on the floor. Here, defendant did not have any reason to know or expect that plaintiff might be distracted from observing the presence of the so-called hazardous wagon.

Other cases cited by the dissent to support its view are inapposite. In Betancourt v Manhattan Ford Lincoln Mercury (195 AD2d 246, appeal dismissed 84 NY2d 932), the defendant car-rental company breached its duty to provide the plaintiffs with a vehicle in safe condition and good working order.

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Bluebook (online)
294 A.D.2d 251, 743 N.Y.S.2d 21, 2002 N.Y. App. Div. LEXIS 5544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinero-v-rite-aid-of-new-york-inc-nyappdiv-2002.