GIVE US OUR DAILY BREAD, BUT ...

The last thing anybody wants to do while shopping at a local supermarket is to trip and fall over a food product. Yet, that is precisely what occurred to Ms. Veronica Feldmus in Feldmus v. Ryan Food Corp.

While shopping in the defendant's supermarket, Ms. Feldmus tripped over "a big loaf of bread in a plastic bag," which had allegedly been left on the floor by a store employee or vendor that had been restocking the shelves.

On motion, the Queens County Supreme Court granted the store's motion for summary judgment and dismissed the negligence case. Seeking to throw Ms. Feldmus a few crumbs, the Appellate Division, Second Department, reversed. Citing to an affidavit submitted by Mr. Hank Chung, the store's manager, the appellate court expressed displeasure with the lackadaisical approach the store had taken with respect to the coordination of deliveries. Apparently, vendors were permitted to "'come in, pack out and go' without any checking by store employees." In the A.D.'s view, this total lack of supervision or control did not absolve the store "of all responsibility for maintaining a safe premises."

In a lone dissent, Justice Fred T. Santucci disagreed with his colleagues and reiterated what we also believed was the governing law: That a defendant in a "slip and fall" case must show that it "'neither created the hazardous condition, nor had actual or constructive of the condition.'" Since in this particular dispute the court was presented with "speculation" as to the cause of the accident, and there was "no proof" that the supermarket had notice of the condition "for a sufficient length of time to remedy it," the dissenter was of the belief that the Supreme Court properly dismissed the lawsuit; a conclusion with which we wholeheartedly agree.

If it gets ever gets appealed to Court of Appeals, we think Ms. Feldmus's case is toast.

For a copy of the Appellate Division's decision in Feldmus v. Ryan Food Corp, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_04239.htm