Contemporary Business and Online Commerce Law 7th Edition by Henry R Cheeseman

Exercise 1

Summary Judgment

Toote v. Canada Dry Bottling Company of New York, Inc. and Pathmark Stores, Inc.

7 A.D.3d 251, 776 N.Y.S.2d 42, Web 2004 N.Y. App. Div. Lexis 6470 (2004)

Supreme Court of New York, Appellate Division

“Plaintiff alleges that she tripped over cases of soda that were stacked on the floor of defendant’s supermarket.”

—Judge Lerner

Facts

Plaintiff Phyllis Toote filed a lawsuit against Pathmark Stores, Inc., a grocery store, and Canada Dry Bottling Company of New York, a bottler and distributor of soda. In her complaint, the plaintiff alleged that the defendants were liable for negligence for injuries she suffered when she fell over cases of soda that were stacked on the floor of the supermarket when she was shopping at the supermarket.

Defendant Pathmark took plaintiff Toote’s deposition, in which she stated that she had entered the supermarket, and upon entering the store, she immediately walked to the soda aisle. Toote stated that she did not see the soda stacked on the floor before she fell over the soda. In the deposition, Toote stated that she did not know how long the soda had been on the floor before she tripped and fell. Pathmark made a motion for summary judgment, alleging that plaintiff Toote could not establish how long the soda had been on the floor before she fell. The Motion Court denied Pathmark’s motion for summary judgment, finding that there were questions of fact to be decided by the jury. Pathmark appealed.

Issue

Should the Motion Court have granted Pathmark’s motion for summary judgment?

Language of the Court

Plaintiff alleges that she tripped over cases of soda that were stacked on the floor of defendant’s supermarket. It appears that at the time of the accident, the supermarket’s shelves, in accordance with usual practice, were being “packed out” with soda by an employee of either defendant bottling company or defendant soda distributor. The supermarket moved for summary judgment, contending that it did not create the alleged dangerous condition and that plaintiff’s deposition testimony, to the effect that she walked to the soda aisle immediately after entering the store and did not see any soda on the floor before falling, shows that she cannot establish how long the soda had been on the floor before she fell. The Motion Court correctly held that such testimony does not establish, prima facie, the supermarket’s lack of prior actual or constructive notice of the soda on the floor.

Decision

The appellate court decided that there were issues of fact to be decided by a jury and affirmed the Motion Court’s denial of Pathmark’s motion for summary judgment.

Case Questions

---

Critical Legal Thinking What is a motion for summary judgment? When is a motion for summary judgment granted?

Ethics Was it ethical for Pathmark, the supermarket, to make a motion for summary judgment based on the facts of this case? Explain.

Contemporary Business Do you think supermarkets have to face a significant number of “faked” slip-and-fall cases?