Perito v. Sunrise Supermarket Corp.

• Decision Date: 06 December 1961
• Citation: 229 N.Y.S.2d 667,33 Misc.2d 627
• Parties: Blanche PERITO and Gerard Perito, Respondents, v. SUNRISE SUPERMARKET CORP., and Liebmann Breweries, Inc., Defendants; Sunrise Supermarkets Corp., Appellant, Liebmann Breweries, Inc., Respondent.
• Court: New York Supreme Court — Appellate Term

Page 667

229 N.Y.S.2d 667

33 Misc.2d 627

Blanche PERITO and Gerard Perito, Respondents, v. SUNRISE SUPERMARKET CORP., and Liebmann Breweries, Inc. Defendants; Sunrise Supermarkets Corp., Appellant Liebmann Breweries, Inc., Respondent.

Supreme Court, Appellate Term, Second Department.

Dec. 6, 1961.

Bernard Helfenstein, Joel Bernstein, Brooklyn, for appellant.

Harry Blum, Brooklyn, for plaintiffs-respondents.

Clark, Fox & LaGuardia (Seymour L. Morgenroth, New York City, of counsel), for defendant-respondent.

Before HART, DiGIOVANNA and BENJAMIN, JJ.

PER CURIAM.

Judgment reversed and a new trial ordered with $30 costs to defendant Sunrise Supermarket Corp. to abide the event.

We are of the opinion that the res ipsa loquitur doctrine is applicable to the situation at bar (Robinson v. Atlantic & Pacific Tea Co., 184 Misc. 571, 54 N.Y.S.2d 42, affd. 269 App.Div. 977, 59 N.Y.S.2d 290; Higgins v. Ruppert, 124 App.Div. 530, 108 N.Y.S. 919). However, the charge to the jury on this aspect of the case was wholly inadequate and the refusal to charge that the rule is a presumption which may be overcome by other evidence was erroneous and prejudicial (George Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455, 153 A.L.R. 1122; Galbraith v. Busch, 267 N.Y. 230, 196 N.E. 36). It was also error to dismiss as to defendant Liebmann Breweries, Inc. before defendant Sunrise Supermarket Corp. had an opportunity to adduce any proof in support of its cross complaint.

DiGIOVANNA and BENJAMIN, JJ., concur.

HART, J., concurs in the reversal, but votes for dismissal of the complaint in a separate opinion.

HART, Justice.

I concur in the reversal directed by the majority but would go further and dismiss the complaint for failure of proof. In my opinion there was not even a scintilla of evidence of negligence on defendant's part. The reasoning of the majority that the doctrine of res ipsa loquitur governs in the situation here present is unacceptable. The material facts are as follows:

Plaintiff, a housewife, went to the self service supermarket operated by defendant Sunrise at East Meadow on Friday, September 5, 1958 at 1 P.M. for the purpose of doing her weekend shopping. She had been there for about twenty minutes and on several occasions passed the beer display, which was near the front of the store, right under the window. On none of those occasions did she see anyone near the beer counter. She said that when she passed it for the last time 'I head like a crash and shattering of glass and then I kept on walking and I felt that my foot was like a sting.'

The case was not tried on the theory of a spontaneous bursting of the bottle. The evidence, as developed, merely established that a bottle fell from the shelf (six or seven inches above the floor), and shattered, cutting the plaintiff's legs . It also appears from plaintiff's testimony that the beer was stacked in the shelf and displayed in two layers, separated by cardboard partitions. When she looked at the display after the accident she saw that some bottles were missing; it looked as though customers had taken bottles from the shelf and 'bought beer'. It did not look like 'you walk into a store in the morning with everything set up and nothing missing.' Upon the denial of its motion to dismiss defendant called upon its assistant store manager to testify as to the manner in which the beer was placed on the shelf. It is first stored in the basement and brought up as needed. Customers take the beer from the top layer and then from the lower one. Again, on occasion, including the day of the accident (but whether before or after the occurrence is not disclosed) a representative of Liebmann Breweries stacked the shelves. When asked on cross-examination whether anyone was detailed by the store for the purpose of seeing that the beer was stacked properly, he testified: 'We try to work in safety in the first place.' But the question addressed to him was not answered categorically. The witness further stated:

'A. You can have merchandise stacked so neat and then the first few people that come in the store can knock that display down. In other words, you'd have to watch each individual customer so that they don't take a can from the bottom or a bottle from the bottom or something like that there. You'd have to detail an employee just to watch each customer so they don't do it. Merchandise is stacked in the stores in safety.'

The witness further testified that he never permitted boys to stack beer on the beer counters, but this duty was restricted at all times to his regular full-time men.

The foregoing summary of the evidence adduced at the trial fails to establish prima facie a violation of the duty of reasonable care owed by defendant to plaintiff. The court below and the majority here reached a contrary conclusion predicated on the theory that the res ipsa loquitur doctrine applies. In my opinion the correct rule is properly stated in 4 Warren's New York Law on Negligence, 613, as follows:

'As is well known in some cases particularly in food stores, goods especially those in cans are piled in various places in quite high piles. These may fall striking a customer or goods that are on shelves in self service stores may fall on a customer endeavoring to reach them. Under such conditions liability may result. Clearly negligence must be established. It must appear that there was something in the manner in which the goods were piled or placed on the shelves that was sufficient to cause them to fall.' (Emphasis supplied)

The conclusion reached by the majority that the doctrine of res ipsa loquitur applies is predicated on the cases of Robinson v. Atlantic & Pacific Tea Co., 184 Misc. 571, 54 N .Y.S.2d 42, aff'd 269 App.Div. 977, 59 N.Y.S.2d 290, and Higgins v. Ruppert, 124 App.Div. 530, 108 N.Y.S. 919.

In the case of Robinson v. Atlantic & Pacific Tea Co., 184 Misc. 571, 573, 54 N.Y.S.2d 42, 43, dediced by a divided court in the Appellate Term, First Department, and affirmed, without opinion, by a divided court in 269 App.Div. 977, 59 N.Y.S.2d 290, plaintiff, a customer in defendant's self-service store, bent down to select an item from a shelf, when a can fell from another shelf striking her on the head. Recovery had been had in the trial court under the res ipsa doctrine. The appellant there urged that the doctrine was inapplicable because it did not have exclusive control since all of the customers had similar control, that they did 'touch, remove from the shelves and examine the merchandise without purchasing it, replacing it on the shelves, without the direct supervision of the defendant or its agents or employees.' The Appellate Term found that this argument lacked merit since defendant had the right to control and therefore the doctrine of res ipsa loquitur was applicable. The opinion in that case was written when the self-service supermarket business was relatively in its infancy. It proceeded on the theory that since customers had free access to shelves to select merchandise, 'defendant thereby constituted them their agents or servants for that purpose and should be held as much responsible for their acts of carelessness and negligence and for any resulting injury as in the case of an actual employee and upon principle I see no reason why the said doctrine should not be held applicable to such a state of facts' (184 Misc. pp. 573-574, 54 N.Y.S.2d p. 44). I cannot accept the validity of that premise. In selecting and purchasing goods in a self-service store, clearly the customer is acting on his own behalf and not as agent of the supermarket. The views of the Court in Robinson were colored by the thought that 'the obvious purpose of such a merchandising plan is to benefit the operator, to save the employer labor costs and incidental overhead by dispensing with store clerk service.' It might on the other hand be argued, however, that such a merchandising plan is also to benefit the consumer by reducing the costs attendant upon distribution. I do not attempt to resolve the issue of which of these views is correct. I fail, however, to see how, by having such a system of merchandising, the store constitutes the customer as an agent so as to make it liable on the theory of respondeat superior for the negligent handling of the merchandise by customers, absent actual notice.

It would appear to me that the result here should be governed by the case of Mercatante v. The City of New York, 286 App.Div. 265, 142 N.Y.S.2d 473. There, plaintiff, while bending down to pick up a wallet she had dropped, was injured by the fall from the wall in a public corridor in defendant's hospital of a fire extinguisher weighing 54 lbs. Plaintiff had had a recovery at Trial Term on the theory of res ipsa loquitur; the Appellate Division reversed stating, that the fire extinguisher was not in the exclusive control of defendant but was accessible to doctors, nurses, patients and visitors and that 'it was properly contended that it could have also been disturbed by patients walking past, by the visiting public, and by other people who were not employees or agents of the City of New York' (p. 268, 142 N.Y.S.2d p . 476) and 'moreover, if it may be equally inferred that the accident might have been due to causes in no way connected with defendant's negligence, then the rule of res ipsa loquitur may not be invoked and plaintiff will be required to prove the fact of negligence. Galbraith v. Busch, 267 N.Y. 230, 234, 196 N.E. 36, 38; Foltis, Inc., v. City of New York, 287 N.Y. 108, 114, 115, 38 N.E.2d 455, 459, 153 A.L.R. 1122. In Silverberg v. Schweig, 288 N.Y. 217, 219, 42 N.E.2d 493, 494'.

The language appearing in Foltis, Inc. v. City of New York, 287 N .Y. 108, 115, 38 N.E.2d 455, 459, 153 A.L.R. 1122 merits quoting at this point. There the court stated 'in such circumstances' [i. e., exclusive control of the instrumentality and evidence showing an accident would not have...