In <a href="http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202625719777&Hassan_v_Barnes__Noble_1835409"><i>Hassan v. Barnes & Noble Booksellers, Inc</i>.</a>, the plaintiff was allegedly burned when a hot cup of tea fell off a wobbly table in a Barnes & Noble. The plaintiff sued Barnes & Noble and Starbucks for serving tea that was too hot, improperly securing the lid, and allowing customers to use a wobbly table. The court granted Starbucks summary judgment on the basis that it did not supply the tea (it supplied coffee products), did not train Barnes & Noble employees in preparation of the tea, and did not purchase or maintain the tables. The court, however, denied Barnes & Noble’s motion since it failed to establish that it did not have constructive notice of the allegedly defective table. To disprove constructive notice of a defective condition on its premises, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the occurrence. Barnes & Noble offered no evidence as to when the table was last cleaned or inspected relative to the time of the plaintiff’s accident. It therefore failed to meet its prima facie showing of lack of notice of the dangerous or defective condition. As such, the court did not need to consider the other points of contention regarding the temperature of the tea and the lid.
The moral is that in cases that rest on lack of notice, it is important to identify the routine inspections that occurred with regard to the defect early on in the case. It is imperative that your witnesses are prepared to face the constructive notice challenge. Without testimony of specific inspection, constructive notice will be difficult to disprove.
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