O'Shea v. K Mart Corp.

• Decision Date: 21 October 1997
• Citation: 701 A.2d 475,304 N.J.Super. 489
• Parties: Sheila O'SHEA, Plaintiff-Appellant, v. K. MART CORPORATION, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 489

304 N.J.Super. 489

701 A.2d 475

Sheila O'SHEA, Plaintiff-Appellant, v. K. MART CORPORATION, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Submitted Sept. 30, 1997.

Decided Oct. 21, 1997.

Galantucci & Patuto, Hackensack, for appellant (Craig C. Swenson, on the brief).

Hack, Piro, O'Day, Merklinger, Wallace & McKenna, Florham Park, for respondent (Patrick M. Sages, on the brief).

Before Judges PRESSLER, CONLEY and CARCHMAN.

CARCHMAN, J.S.C. (Temporarily Assigned).

Plaintiff Sheila O'Shea appeals from an order of the Law Division granting summary judgment to defendant K. Mart Corporation ¹ and dismissing plaintiff's complaint. We conclude that plaintiff has raised genuine issues of material fact, and accordingly, we reverse and remand for trial.

While the inferences to be drawn from the facts are contested, the essential facts are not in dispute. Plaintiff was shopping in defendant's store seeking to buy a golf bag for her niece. She approached the golf bag display which was located on a shelf that was approximately five feet high. With two hands, she reached for a golf bag, and as she lowered the bag, a second golf bag fell on her causing a significant facial injury. Plaintiff is five feet-three inches tall and noted that the shelf was at "eye-level." This shelf was the top shelf of a display which contained other shelves and displays of golf accessories below the golf bags. Plaintiff described the bag as "heavy" and "cumbersome" with a "thick plastic top" requiring two hands for removal. Plaintiff did not know what caused the second bag to fall except to note that on the entire bag display which ran approximately twenty-two feet in length, none of the bags was secured. Plaintiff also observed that during the fifteen minute period that she was in the display area, no sales or other personnel assisted her.

The trial judge granted summary judgment stating:

I feel I don't have much choice but to grant the Summary Judgment. There--there isn't any indication as to how this accident happened. There isn't any indication as to what caused the accident. There is nothing to say that one bag was leaning or not leaning or anything else like that.... [T]o allow the case to go forward is to suggest that anybody who puts something on a shelf in a store is negligent per se.... I think you have to show me something, not just the mere display of merchandise, that leads me to conclude that there's the potential for negligence. In this case, all you have shown me is that the merchandise is displayed.... You can't even prove how it happened.

We disagree and are of the view that plaintiff demonstrated sufficient facts to establish a jury issue and warrant a denial of the motion.

We start our analysis by restating the basic legal principle applicable here--defendant owed to plaintiff as a business invitee the duty of reasonable care to provide a reasonably safe place to do that which was within the scope of the invitation. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433, 625 A.2d 1110 (1993) ("an owner or possessor of property owes a higher degree of care to the business invitee on the premises for purposes of the owner that are commercial or business related"); Butler v. Acme Markets, Inc., 89 N.J. 270, 275-76, 445 A.2d 1141 (1982) ("[t]he measure of that care has been described as 'due care under all of the circumstances.' Bozza v. Vornado, Inc., 42 N.J. 355, 359, 200 A.2d 777 (1964); 2 Harper & James, Law of Torts (1956) § 27.12 at 1487."). This duty is an affirmative one obligating a proprietor to not only discover and eliminate any possible dangerous conditions or circumstances, Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290, 291, 471 A.2d 25 (1984), but also to keep the premises reasonably safe and not create any condition which renders the premises dangerous. Bozza v. Vornado, supra 42 N.J. at 359-60, 200 A.2d 777 (jury may consider the condition of the premises and nature of the business in determining whether a defendant exercised due care.).

The absence of sales personnel leads to the inference that defendant is a self- service store. As such, defendant is obligated to maintain such an enterprise consistent with the nature of its operation. The standard applicable to a self-service store is articulated in our decision in Francois v. American Stores Co., 46 N.J.Super. 394, 134 A.2d 799 (App.Div.1957):

We think we may take notice that in self-service stores, such as the one here, the customer is expected and indeed invited to handle and examine articles of merchandise displayed or stacked in the store, to remove them from where they stand and, if he decides not to make the purchase, then to put them back. The defendant, having established a business of this nature, is under a duty to take reasonable measures to guard against injuries to customers due to such fallings of stacked merchandise as may result from these actions of other customers. If customers are generally careless in pulling out articles from the stack and in reinserting them, the duty on the part of the defendant to take precautions to meet the situation is correspondingly heavier. Its duty to take corrective measures may be heavier also during the times of the day when the crowd is greater.

[Id. at 398, 134 A.2d 799.]

While Francois involved res ipsa loquitur as a theory of recovery, a theory neither suggested nor argued here, the duty and standard remain the same.

In response to the motion for summary judgment, defendant produced an affidavit from Fred Privara, a manager for defendant, who offered that "routine periodic inspections" are made during business hours and on the date in question, there was no notice of any problem with the golf display. Defendant's focus is too narrow. The issue is not simply one of notice; the issue concerns a condition created by the proprietor for which notice is not required. See Smith v. First National Stores, 94 N.J.Super. 462, 466, 228 A.2d 874 (App.Div.1967) ("Notice, either actual or constructive, is not required where a defendant ... creates a dangerous condition.").

We conclude that the facts before the motion judge raised legitimate inferences that the height of the display combined with the nature of the product being displayed and sold breached defendant's duty to plaintiff to keep the premises...