Cameron v. H. C. Bohack Co.

• Decision Date: 08 May 1967
• Citation: 27 A.D.2d 362,280 N.Y.S.2d 483
• Parties: Elizabeth CAMERON, Respondent, v. H. C. BOHACK CO., Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 483

280 N.Y.S.2d 483

27 A.D.2d 362

Elizabeth CAMERON, Respondent, v. H. C. BOHACK CO., Inc., Appellant.

Supreme Court, Appellate Division, Second Department.

May 8, 1967.

Marvin, Montfort, Healty, McGuire & Salley, Garden City (William F. McNulty, New York City, of counsel), for appellant.

Albanese & Albanese, Jamaica (Paul S. Graziano, Jamaica, of counsel), for respondent.

Before UGHETTA, Acting P.J., and BRENNAN, RABIN, HOPKINS and BENJAMIN, JJ.

HOPKINS, Justice.

This appeal primarily involves a determination of whether the doctrine of Res ipsa loquitur is applicable when a customer falls in a self-service supermarket due to the presence of debris on the floor.

The plaintiff and her son had entered the store in order to make a purchase. While walking in an aisle, the plaintiff fell on granular material which resembled a detergent. Products of this type were located on the open shelves adjoining the aisle. The court below charged the jury:

'The plaintiff contends that when a retailer chooses this method of merchandising; namely, inviting the public to, in effect, go behind the counter and select their own merchandise, and as he contends, in effect, making clerks out of the people who resort to this method of purchasing their supplies and food and so on, that in the event that a person is injured during the course of movement in and about the supermarket which, if factual, resulted in an injury, then the burden is upon the defendant to come forward with proof satisfactory to you as a jury by way of exculpation of itself from any negligence.

In sum and substance, gentlemen, the plaintiff in this case contends that since the defendant has resorted to this method of merchandising, then there is a requirement on the defendant to come forward with proof sufficient to satisfy you in order to free them of responsibility, that proof which would exculpate them from responsibility for the accident in question.'

To these instructions the defendant excepted.

We are of the opinion that the application of the doctrine of Res ipsa loquitur to this case was error.

Generally, Res ipsa loquitur operates when (1) the accident is such that it ordinarily would not have occurred in the absence of someone's negligence and (2) the instrumentality or agency causing the injury was in the exclusive possession and control of the defendant (Corcoran v. Banner Super Market Inc., 19 N.Y.2d 425, 280 N.Y.S. 385, 227 N.E.2d 304, dec. April 20, 1967; Foltis v. City of New York, 287 N.Y. 108, 114--115, 117, 38 N.E.2d 455, 459--460, 461, 153 A.L.R. 1122; Galbraith v. Busch, 267 N.Y. 230, 234, 196 N.E. 36, 38; Prosser, Torts (3rd ed.), § 39, p. 218). The requirement of exclusive possession and control is not an absolutely rigid concept. It implies that the possession and control of the defendant over the instrumentality are of such a character that the probability that the negligent act was caused by someone other than the defendant is so remote that it is fair to permit an inference that the defendant is the negligent party. It is under these circumstances that 'the thing speaks for itself' and that the trier of the facts may draw an inference of negligence against the defendant. If this characteristic of possession and control is absent, the doctrine is not applicable (Godfrey v. County of Nassau, 24 A.D.2d 569, 262 N.Y.S.2d 60; Murphy v. City of New York, 19 A.D.2d 545, 240 N.Y.S.2d 883, affd. 14 N.Y.2d 532, 248 N.Y.S.2d 394, 197 N.E.2d 781; Mercatante v. City of New York, 286 App.Div. 265, 142 N.Y.S.2d 473, mot. for rearg. and for lv. app. den. 286 App.Div. 964, 144 N.Y.S.2d 914).

We think that it is that element of possession and control which is lacking in this case. The customers of a supermarket have easy access to the products on the open shelves adjoining the aisles; that accommodation, indeed, is one of the attractions to the customers who patronize the store. The likelihood that debris found in an aisle was due to spilling from broken packages after careless handling by a customer is not remote; it is at least as great as the likelihood that an employee was responsible for the presence of the debris.

Proof of notice, either actual or constructive, has always been said to be essential to recovery by a customer who has fallen because of a foreign substance on the floor of a supermarket or store (Dowling v. F. W. Woolworth Co., 16 A.D.2d 672, 227 N.Y.S.2d 231; Sikora v. Apex Beverage Corp., 282 App.Div. 193, 122 N.Y.S.2d 64, affd. 306 N.Y. 917, 119 N.E.2d 601; Donohoe v. Great Atlantic & Pacific Tea Co., 277 App.Div. 739, 103 N.Y.S.2d 406; Eldridge v. Mike's Meat Market, 261 App.Div. 903, 25 N.Y.S.2d 156; cf. Bransfield v. Grand Union Co., 24 A.D.2d 586, 261 N.Y.S.2d 1006, affd. 17 N.Y.2d 474, 266 N.Y.S.2d 981, 214 N.E.2d 161 (anno., 61 ALR2d 6, 14)).

The plaintiff urges, on the other hand, that Res ipsa loquitur should be introduced into an action against the owner of a supermarket as a consequence of the method by which he elects to operate his business. Thus, the argument runs, customers become in effect the employees of the owner, because they select their merchandise and care it about the store, and, hence, the owner should be held responsible for their acts, since control of the merchandise remains with him. We think that this reasoning adopts an artificial view of the relationship between the store owner and his customers which cannot be supported either conceptually or realistically. We see no common constituents in the legal status of a customer and that of an employee of a store, whether the enterprise is a self-service supermarket or the more conventional retail establishment, and it is certain that any such suggestion would astonish the owner, the employer and the customer alike.

Nor do we think, as the plaintiff argues, that the doctrine of Res ipsa loquitur should be applied because a greater profit may be realized by the owner of a supermarket as a result of the manner of its operation; no evidence is presented to us that sustains the argument and we cannot take judicial notice of so uncertain an inference (cf. Roberts, 'Preliminary Notes Toward a Study of Judicial Notice', 52 Cornell L. Quart. 210, 232--234).

This is not to say that the operation of a supermarket may not cast a duty of frequent inspection and intensive maintenance of the premises on the owner. The circumstances of the operation dictate the content of the duty of the operator; when the operator invites the participation of the public in his operation, necessarily he must recognize and be ready to discharge a heightened duty arising out of the dangers reasonably to be expected from that participation. The conditions of self-service marketing and the probability of spillage from handling of the products by customers may well be found by the trier...