Was ShopRite Liable for the Patron’s Injury?
Alfred Kenlaw was injured while using and exiting a motorized cart in front of the entrance to the ShopRite Supermarket of Wallkill located at 20 Lloyds Lane, Middletown, New York. Kenlaw alleged that ShopRite was negligent in the “ownership, operation, maintenance and control of the its premises and motorized shopping cart” and that it failed to maintain its premises and motorized shopping cart in a reasonably safe condition.
Kenlaw arrived at ShopRite to do some shopping and used a motorized cart as he had done many times before. He was operating the motorized cart for approximately 45 minutes prior to his fall. As Kenlaw was leaving the store, he pulled the cart up to the car his wife parked in the fire zone just outside the exit door. The cart remained on the sidewalk perpendicular to the car. While seated, Kenlaw took the bags out of the front basket and reached over the basket to place them in the back seat of the car. He then attempted to get out of the cart from the right side. With his right foot on the ground, his left hand on the wire basket and his right hand to his side, the cart “jerked forward” four or five inches and he lost his balance.
ShopRite moved for summary judgment dismissing the complaint contending no notice, actual or constructive, of any defect or dangerous condition that allegedly caused the cart to jerk forward and Kenlaw to fall. ShopRite had the initial burden of establishing, prima facie, that it neither created the defective condition nor had actual or constructive notice of the condition for a sufficient length of time to discover and remediate. Only after ShopRite satisfied that threshold burden would the Court examine the sufficiency of Kenlaw’s opposition.
The Court found that ShopRite lacked either actual or constructive notice of any defective condition of the motorized shopping cart. Kenlaw admitted that he had been using the cart for approximately 45 minutes without any problems prior to the incident. That was sufficient to make out a prima facie case that ShopRite had no actual or constructive notice of any defective condition prior to the accident, thus entitling ShopRite to summary judgment dismissing the action. The burden then shifted to Kenlaw to produce evidentiary proof in admissible form to establish the existence of facts which required a trial of the action. It was imperative that Kenlaw lay bare and reveal his proofs in order to show that the allegations in the complaint were real and capable of being established upon a trial.
But Kenlaw failed to submit evidence sufficient to raise a triable issue of fact. He submitted nothing to support any inference that ShopRite was negligent with respect to the cart or that had any notice of any defects before the cart was used by Kenlaw.
Kenlaw submitted an expert affidavit of Leo J. DeBobes, a New York State Department of Labor certified safety consultant. DeBobes raised an issue of fact only as to whether ShopRite had a general awareness that a dangerous condition might exist, an insufficient predicate for liability in the absence of notice of the particular condition which caused Kenlaw’s fall.
DeBobes stated that he reviewed the SmartKART Owner’s Manual Operating Instructions (Rev. Date: 1/20/09) for the SmartKART Electric Utility Machine and pointed out that the SmartKART was intended to be used indoors on level surfaces only and that there should have been instructions on how to safely use the cart displayed for all anticipated users. As such, since ShopRite did not prevent users from riding the carts outside the store and as there was no posted instructions on how to use the cart, ShipRite was negligent. But that argument failed on many levels.
DeBobes did not include a copy of the Owner’s Manual to which he referred. More importantly, the facts in evidence did not support his inference that the cart was actually a SmartKart. Kenlaw specifically testified that the cart he used that day did not say “SmartKart” and it was not red in color like the those in the photograph reviewed by DeBobes.
Kenlaw opined that the accident was a foreseeable result of the fact that customers were permitted and encouraged to take the carts outside of the store. Yet there was nothing in the record to suggest that the accident happened as a result of an outdoor surface. Kenlaw testified that the cart was stable while he reached over the front basket to put the bags in the car but then “jerked” forward when he was getting out of the cart. There was nothing in the record alleging there was any vertical changes in the levels, gaps, or sloping of the sidewalk. Further, Kenlaw testified that he had been utilizing the motorized carts which were supplied at the ShopRite since his hip replacement surgery a year before, without any incident. On the day of the accident, he had been using the cart for approximately 45 minutes without any issues. Kenlaw was experienced in the use of the motorized cart.
Kenlaw failed to raise a triable issue of fact as to notice of the particular condition that caused the cart to jerk forward. His conclusory allegations, unsupported by competent evidence, were insufficient to raise a triable issue. ShopRite’s motion for summary judgment was granted and Kenlaw’s complaint was dismissed.