Wade Clark Mulcahy LLP

In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2019/12/Aupperlee-v.-Restaurant-Depot-LLC.pdf">Aupperlee v. Restaurant Depot, LLC</a><a href="https://www.wcmlaw.com/wp-content/uploads/2019/12/Aupperlee-v-Restaurant-Depot-LLC.pdf"></a></em>, the Appellate Division reversed a summary judgment denial, after a jury trial, and dismissed a lawsuit after considering a legal argument raised for the first time on appeal.
<p style="text-align: justify;">On December 19, 2012, the plaintiff was a customer at Restaurant Depot when she was knocked to the floor by a U-Boat shopping cart, stacked high with items, being pushed by another customer.  The plaintiff filed a lawsuit naming Restaurant Depot as a defendant.  The plaintiff’s Complaint alleged that Restaurant Depot was negligent in failing to monitor its customers' use of the U-boat shopping carts and, more specifically, in failing to require customers to refrain from loading the carts over a certain height.</p>
<p style="text-align: justify;">Restaurant Depot moved for summary judgment dismissing the Complaint, but Queens County Supreme Court denied the motion, and a trial was held.  At the close of the trial, the jury found Restaurant Depot 70% liable in the happening of the accident.</p>
<p style="text-align: justify;">On appeal to the Second Department Appellate Division, Restaurant Depot argued that its summary judgment motion should have been granted because it had no duty to control the conduct of another customer, specifically the customer that struck the plaintiff with the shopping cart.</p>
<p style="text-align: justify;">The Appellate Division noted that this argument was not made in the summary judgment motion but, nevertheless, considered it on appeal.  The Appellate Division held that although the defendant has raised this contention for the first time on appeal, "we may consider it . . . because the existence of a duty presents a question of law which could not have been avoided if brought to the Supreme Court’s attention at the proper juncture.”</p>
<p style="text-align: justify;">Addressing the issue of legal duty, the Appellate Division ruled that in some instances the duty to keep a premises in a reasonably safe condition may extend to controlling the conduct of third persons who frequent or use the property.  But made clear that “this duty is, however, not limitless."</p>
<p style="text-align: justify;">In assessing the facts of the case, the Appellate Division decided summary judgment should have been granted because “an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control" and the Restaurant Depot did not have control of the customer’s actions.</p>
<p style="text-align: justify;">Thanks to George Parpas for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>