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No Christmas Miracle for Plaintiff, Falling Garland is Not a Foreseeable Risk (NY)

December 22, 2017

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Bah humbug… Christmas shopping is fraught with danger or so alleged a plaintiff who claimed to have been snared by holiday garland.
In <a href="http://blog.wcmlaw.com/wp-content/uploads/2017/12/Parke-v.-Dollar-Tree-12-21-17.pdf">Parke v. Dollar Tree, Inc.</a>,  the plaintiff testified that while taking down garland from a display, she felt a snag on the garland and, sensed additional "stuff" starting to fall.  When she started to move her feet to avoid the decorative avalanche, she fell. Plaintiff further testified that she did not trip over anything and was not struck by anything before she fell, nor did she strike anything on the way down as she fell. In opposition to defendant's motion, plaintiff submitted defendant's Holiday Sales Planner and Stocking Procedural Manual. She also submitted an affidavit of an expert witness — a retail sales merchandising specialist, consultant and planner — who attested to the proper, correct and safe way to install, stock and display consumer products and merchandise for sale to the public in retail stores.
Nevertheless, the Third Department ultimately reasoned that "foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated". The Court found that Dollar Tree met its burden in establishing, as a matter of law, that it was not reasonably foreseeable for plaintiff to be injured while taking down garland. As such, the burden shifted to plaintiff to raise a triable issue of fact.
Ultimately, the Court found that plaintiff’s testimony and expert affidavit failed to demonstrate how the location and stocking of the garland presented a foreseeable risk. Therefore, plaintiff failed to raise a triable issue of fact that plaintiff's injury was reasonably foreseeable. The Supreme Court found that there was "nothing about the nature of packages of garland falling from above that would lead a reasonable person to foresee said garland knocking a person to the ground and/or breaking a person's wrist." Finally, the doctrine of <em>res ipsa loquitur</em> did not apply because "the doctrine cannot be used where, as here, the defendant against whom the doctrine is asserted owes no duty in connection with the mechanism that caused the injury"
Thanks to Vincent Terrasi for his contribution.
For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.
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