Happy Thanksgiving! Don’t Get Trampled

If you’re like me, the thought of (non-online) shopping on Black Friday – the day after Thanksgiving (i.e, not that one, or that one, or that one) – or Thanksgiving Day itself (really?!?) ranks somewhere on the “fun” scale between a colonoscopy and being trapped on an elevator in a burning building with [insert annoying celebrity].

There are many reasons to avoid stores during this time – e.g., inconvenience, aggravation, frustration, “for the love of all that is good and holy why would I do this to myself?” – but the one that arguably makes the most sense is the actual risk of physical injury. If you’re skeptical, just take a look at the Black Friday Death Count.

What happens if you’re injured while shopping? Can you recover for those injuries?

Here is the general rule in New York, based on Pattern Jury Instruction 2:90:

The (owner, possessor) of (land, a building) has a duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable.

In order to recover, the plaintiff[] must prove: (1) that the premises were not reasonably safe; (2) that the defendant[] was negligent in not keeping the premises in a reasonably safe condition; and (3) that [defendant’s] negligence in allowing the unsafe condition to exist was a substantial factor in causing [plaintiff]’s injury. …

The legal rules governing recovery for  injuries resulting from property-based dangers fall into the general category of premises liability law. One common type of premises liability case is one involving a slip-and-fall or trip-and-fall on someone’s property.

Injuries in the shopping context can happen for a variety of reasons, including falling objects, assaults by store employees, and aggressive customers.

One example of the latter is Milton v. Lord & Taylor, decided July 15, 2014. There, the plaintiff claimed that she was injured while shopping in defendant’s store in April 2012 during a “one-day-only charity sale”. She claimed that she was injured after another customer “bumped into her, causing her to catch her foot on the bottom of a clothing rack and fall.” Plaintiff argued “that the aisles formed by the clothing racks were too narrow and that the set-up of the floor within the department store posed risks to customers.” The court denied summary judgment to defendant, holding:

Since there is a material issue of fact as to whether the floor plan in the store and the design of the rack posed a danger to customers, there is also an issue as to whether the injury in the present case was was a foreseeable consequence of the alleged negligence. Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve. … Accordingly, the issue of whether the plaintiff’s injury is traceable to the allegedly negligent floor plan should also be left for the fact finder.

Thus, assuming this decision does not get overturned on appeal, the issue of the store’s liability will be decided by a jury. However, since every case turns on its unique facts, even a slight variation in the circumstances can result in the opposite conclusion (i.e., summary judgment for defendant).

That said, be careful out there. No TV deal is worth putting your safety at risk!

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