Hyams v. King Kullen Grocery Co.
| Decision Date | 20 January 1964 |
| Citation | 20 A.D.2d 657,246 N.Y.S.2d 575 |
| Parties | Lorraine HYAMS and Richard Hyams, Respondents, v. KING KULLEN GROCERY COMPANY, Inc., Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
John A. Anderson, Rockville Centre, for appellant.
Santangelo, Morrison & Martorano, New York City, for respondent; Alfred E. Santangelo, New York City, of counsel.
Before BELDOCK, P. J., and KLEINFELD, CHRIST, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, medical expenses and loss of services, the defendant King Kullen Grocery Company, Inc., by permission of the Appellate Term of the Supreme Court, appeals from so much of its order, dated June 22, 1962, as affirmed a judgment of the former Municipal Court of the City of New York, entered January 3, 1962 on a jury's verdict, insofar as such judgment was in favor of plaintiffs and against said defendant.
Order, insofar as appealed from, affirmed with costs.
The proof in this record, as submitted by plaintiffs, showed that the female plaintiff was shopping in said defendant's supermarket; that as she stood before a display of bottles filled with a carbonated beverage, one of the bottles exploded and cut her face; and that she had not touched any of the bottles. No evidence was offered by defendants.
In our opinion, this proof was sufficient to establish, prima facie, the negligence of said defendant and to shift to it the burden of going forward with evidence that it was not a fault, since it had exclusive control of the supermarket and the bottles (Day v. Grand Union Company, 280 App.Div. 253, 113 N.Y.S.2d 436, affd. 304 N.Y. 821, 109 N.E.2d 609).
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...Res ipsa loquitur may properly be used when a customer is injured from an exploding bottle in a supermarket (Hyams v. King Kullen Grocery Co., 20 A.D.2d 657, 246 N.Y.S.2d 575; Day v. Grand Union Co., 280 App.Div. 253, 113 N.Y.S.2d 436 affd. 304 N.Y. 821, 109 N.E.2d 609), since the element o......
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...and Keeton, op. cit. § 39, at 250; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344; see also, Hyams v. King Kullen Grocery Co., 20 A.D.2d 657, 246 N.Y.S.2d 575; Day v. Grand Union Co., 280 App.Div. 253, 113 N.Y.S.2d 436, affd. 304 N.Y. 821, 109 N.E.2d The exclusive control requ......
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...v. King Kullen Grocery Company, Inc., et al., Sup., 230 N.Y.S.2d 962, rev'g in part 32 Misc.2d 920, 223 N.Y.S.2d 263, aff'd 20 App.Div.2d 657, 246 N.Y.S.2d 575.) However, the statement of the plaintiff, while being questioned by counsel for the co-defendant, now defendant-respondent, namely......
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Lindenauer v. State, 52066
...N.Y.S.2d 578 and Hyams v. King Kullen Grocery Co., 32 Misc.2d 920, 223 N.Y.S.2d 263, revd. in part Sup., 230 N.Y.S.2d 962, affd. 20 A.D.2d 657, 246 N.Y.S.2d 575. Controlling case law establishes that such a proposition is too The rigid requirement of 'exclusive control' has been relaxed by ......