Henderson v. Waldbaums
| Decision Date | 10 April 1989 |
| Citation | 149 A.D.2d 461,539 N.Y.S.2d 795 |
| Parties | Joan HENDERSON, Respondent, v. WALDBAUMS, Appellant (and a third-party action). |
| Court | New York Supreme Court — Appellate Division |
Dennis P. Hannafey, Brooklyn (Joseph D. Ahearn, of counsel), for appellant.
Jack Kasten, P.C., Brooklyn (Thomas Torto, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, BROWN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the defendant appeals from an interlocutory judgment of the Supreme Court, Kings County (Dowd, J.), entered February 9, 1988, which, upon a jury verdict finding, inter alia, the defendant Waldbaums 60% at fault in the happening of the accident, is in favor of the plaintiff and against it on the issue of liability.
ORDERED that the interlocutory judgment is affirmed, with costs.
The record shows that the plaintiff customer was struck by a shopping cart which was being used to effect a delivery by the third-party defendant's Dean's Products, Inc. (hereinafter Dean's) in the defendant Waldbaums store. The plaintiff was looking at the selection in the meat counter and the accident happened so fast that she was unable to say who was operating the cart. However, she did notice that the shopping cart contained packages labelled "Dean's" or "Dean's sausages". It was established at the trial that the assistant manager of the Waldbaums store was aware that Dean's regularly made its deliveries through the front door, using a shopping cart intended for customers. It was also established that there was a back door leading to the meat storage room and shop floor, and that special "U-boat" conveyors were provided for deliveries. The jury found that the shopping cart was not operated by a Waldbaums' employee, but nonetheless found Waldbaums, as well as Dean's, negligent. Waldbaums challenges the jury verdict, arguing that the action of the Dean's delivery person in striking the plaintiff customer was unforeseeable and, moreover, was the sole proximate cause of the accident. We disagree.
It is settled that an owner has a duty to another on his land to ensure that the property is maintained in a reasonably safe condition in view of all the circumstances, considering the purpose of the person's presence, the likeihood of injury and the burden of avoiding the risk (see, Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868). It is also the duty of a storekeeper to prevent any obstruction to its customers in the aisles of its store (Lederer v. Samuel Broadway Food Corp., 33 A.D.2d 553, 304 N.Y.S.2d 611). Foreseeability does not require the prediction of the exact manner in which the...
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...of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee’ " ( Henderson v. Waldbaums, 149 A.D.2d 461, 462, 539 N.Y.S.2d 795, quoting Trustees of Columbia Univ. v. Mitchell/Giurgola Assoc., 109 A.D.2d 449, 453, 492 N.Y.S.2d 371 ; see Dreyfus ......
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...has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine’ ” (Henderson v. Waldbaums, 149 A.D.2d 461, 462, 539 N.Y.S.2d 795, quoting Trustees of Columbia Univ. v. Mitchell/Giurgola Assoc., 109 A.D.2d 449, 453, 492 N.Y.S.2d 371). Here, Brigh......
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