Wade Clark Mulcahy LLP

<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2021/11/Scalia-v.-King-Kullen-Grocery-Co.-Inc..pdf">Scalia v. King Kullen Grocery Co. Inc.</a>,</em> 2021 NY Slip Op 06384 (2d Dept. 2021), Plaintiff was using one of King Kullen’s shopping carts and began to push it forward when one of the wobbly wheels came into contact with a crack on the sidewalk in front of the supermarket, causing her to fall and injure herself. The Second Department affirmed the trial court's denial of Kullen’s summary judgment motion, holding that plaintiff adequately identified the cause of her fall by testifying about the cracked sidewalk and the wobbly left front wheel of the shopping cart. While King Kullen did successfully prove it did not have actual notice or create the alleged conditions that caused the fall, King Kullen failed to establish it did not have constructive notice because the store manager failed to provide sufficient testimony as to when the shopping carts of the store were last inspected. Thus, the Court in finding this issue of fact, permits the matter to presented to a jury to decide.</p>
<p style="text-align: justify;">The key aspect of the Second Department’s legal reasoning on the constructive notice issue was Kullen’s failure to demonstrate when the shopping cart was last inspected. A premises owner, or in this case a tenant of the property, should not only periodically inspect their premises for dangerous conditions such as cracked or raised sidewalks, but they must also inspect the devices or instruments for public use on their premises.  The inspections should be thorough, be conducted periodically, and recorded by management. Documentation of a thorough inspection of the premises can mean the difference between proving you had no constructive notice, and creating a triable issue of fact for a jury to determine.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this article.  Should you have any questions, please contact <a href="mailto:tbracken@wcmlaw.com">Thomas Bracken.</a></p>