A trial court recently denied the motions by Bob’s Discount Furniture and Costco Wholesale Corporation to dismiss claims arising from Marion Hedges being struck by a shopping cart dropped from the fourth floor of the East River Plaza shopping complex (pictured).
Bob’s Discount Furniture
This defendant rented part of the shopping complex’s fourth level, from which the shopping cart was dropped.
As to this defendant, plaintiffs alleged that it “negligently failed to keep its premises safe” and “failed to respond adequately to prior complaints or reports of persons throwing objects off the elevated walkway outside its store.”
Initially, Bob’s Discount Furniture could not rely on its lease – to show that it did not bear any responsibility for what occurred on the elevated walkway from which the cart was thrown (which was apparently a “common area”) – because no witness attested to the lease’s signature and the lease was not otherwise authenticated.
The court also rejected Bob’s objection to plaintiff’s use of an affidavit from one of its current employees, on the ground that plaintiff’s attorney obtained it in violation of Rule 4.2 of the Rules of Professional Conduct (which regulates and generally prohibits an attorney from communicating with represented parties):
The employee … is neither a defendant, nor a defendant’s managerial employee with the authority to bind a defendant or the responsibility to carry out the advice of a defendant’s attorney, nor a defendant’s principal with a stake in the corporate entity. As the employee makes clear in his affidavit, he was and is part of the Bob’s Discount Furniture “sales staff” and not part of the “management team.” Therefore no rule restricted plaintiffs’ attorney in obtaining sworn statements from this employee.
In opposition to Bob’s motion to dismiss, plaintiffs introduced evidence that:
for approximately two years leading up to plaintiffs’ injury, the store had been attracting unsupervised minors inside with free beverages, candy, and cookies, where the minors often became disruptive. After the store expelled the minors from inside the store, its employees had observed these minors throwing candy and other objects off the fourth level walkway. Security personnel for the shopping center had complained about this misbehavior to store employees, who had reported these complaints to the store management.
The store’s video recording as authenticated by its witness, on which plaintiffs may rely, corroborates that, on the day of plaintiffs’ injury, the store and the boys involved acted consistently with this pattern. The store was offering free beverages and food and attracted the boys inside. They became disruptive, so the store expelled them into the mall, but never notified security personnel or anyone else that the boys posed a risk.
Thus, according to the complaint, Bob‘s Discount Furniture was aware of a situation that frequently posed a risk to the shopping center‘s other tenants and customers, whether customers of Bob’s Discount Furniture or of other tenants, and other persons in the center. At minimum, the complaint raises a question whether it was reasonably foreseeable to Bob’s Discount Furniture that expelling the troublesome boys from the store to cause disruption outside the store, without any further action to address their misbehavior, would result in injury to persons or property outside.
Under the law, this was sufficient to defeat Bob’s motion:
A business proprietor in possession and control of premises owes a duty to control persons on the business’ premises when the business is aware of the need for such control and is in a position to take precautionary measures to protect members of the public from the misconduct of those uncontrolled misbehaving persons. A duty of supervision adequate to guard against reasonably foreseeable injury is particularly warranted when, as alleged here, the business invited unescorted minors into its premises. Under these circumstances, Bob‘s Discount Furniture may be liable for reasonably foreseeable injuries proximately related to its inadequate supervision of its minor invitees.
Consequently, even were the court to consider Bob’s Discount Furniture‘s evidence regarding its lack of responsibility for shopping carts or for maintenance of the shopping center’s common areas, plaintiffs’ claims against this defendant are premised on negligent supervision of the store‘s invitees, not negligent maintenance of carts or of premises beyond its leasehold.
The court therefore denied Bob’s Discount Furniture’s motion to dismiss the complaint for its negligence.
Costco rented part of the shopping complex’s ground level across from a parking garage pay-box kiosk where Ms. Hedges was struck.
Plaintiffs allege that Costco “owed a duty to take precautionary measures to protect the store’s customers or other members of the public from a danger that store personnel were aware of and in a position to prevent.”
The court found plaintiff’s evidence thin, but nevertheless denied Costco’s motion and permitted plaintiffs the opportunity to conduct additional discovery:
The inconclusive evidence at this stage leaves open the question of whether plaintiffs were injured in an area necessary for egress from or ingress to Costco Wholesale and where store employees and management were aware of imminent danger from overhead. The business proprietor’s duty to provide a safe environment for members of the public whom the business invites into its store extends to customers‘ means of egress and ingress. Thus, if plaintiffs were injured in an area necessary for egress or ingress where it was reasonably foreseeable that customers exiting or entering would be exposed to danger, such facts would raise the further question regarding the extent of Costco Wholesale’s duty to those customers, including plaintiffs, even if that duty is only to warn them.
Disclosure undoubtedly will pinpoint where plaintiff’s injuries occurred in relation to Costco Wholesale, as well as where the assailants launched their instrumentality in relation to Bob‘s Discount Furniture. Through disclosure from these defendants plaintiffs reasonably may expect to obtain information also about complaints by customers or employees to management personnel that customers, when entering or exiting the store premises, were being assaulted by objects thrown from overhead or even about store managers observing such conduct themselves. Insofar as plaintiffs may have failed to rebut Costco Wholesale‘s defenses at this stage, such disclosure carries the potential to defeat summary judgment more soundly and is warranted before granting Costco Wholesale summary judgment.
In conclusion, the court stressed that plaintiffs’ claims against Bob’s and Costco were “not premised on negligent maintenance of the premises or carts” but rather that Bob’s negligently supervised its customers and that both “negligently failed to warn or take other precautions to protect shopping center customers from a danger that the stores were aware of and in a position to prevent.”