Summary
In Monge v. Home Depot, Inc., 307 A.D.2d 501 (3rd Dept.2003), plaintiff attempted to maneuver around a plant display placed by defendant, and in so doing, her shopping cart's wheel went off the curb and caused her to fall and be injured.
Summary of this case from Barber v. Cornell Univ. Coop. Extension of Orange Cnty.Opinion
93086
Decided and Entered: July 10, 2003.
Appeal from an order of the Supreme Court (Connor, J.), entered August 5, 2002 in Ulster County, which denied defendant's motion for summary judgment dismissing the complaint.
Hodgson Russ L.L.P., Albany (Noreen De Wire Grimmick of counsel), for appellant.
Basch Keegan, Kingston (Maureen Keegan of counsel), for respondents.
Before: Crew III, J.P., Spain, Carpinello, Lahtinen and, Kane, JJ.
MEMORANDUM AND ORDER
Plaintiff Mary Monge (hereinafter plaintiff) was shopping in the outside garden center of defendant's store. As she maneuvered one of defendant's shopping carts past a plant display, one of the cart's wheels went off the sidewalk curb, tipping the cart over and pulling plaintiff down with it. Plaintiff and her husband, derivatively, commenced this action to recover for her resultant injuries. Supreme Court denied defendant's motion for summary judgment, prompting this appeal.
We conclude that Supreme Court properly denied summary judgment because questions of fact exist regarding comparative negligence, whether defendant created a dangerous condition and whether the condition was open and obvious. To manifest entitlement to summary judgment, defendant, as property owner, was required to establish as a matter of law that it maintained the property in a reasonably safe manner, and that it did not create a dangerous condition which posed a foreseeable risk of injury to individuals expected to be present on the property (see Richardson v. Rotterdam Sq. Mall, 289 A.D.2d 679, 679; see also Tagle v. Jakob, 97 N.Y.2d 165, 168). Defendant's employees created and arranged the plant display. Regarding the adequacy of the aisle and whether a cart could safely pass between the display and the curb, defendant failed to proffer any definitive statements as to the width of the aisle, let alone statements by anyone with direct personal knowledge (see Connor v. Tee Bar Corp., 302 A.D.2d 729, 731). Defendant's submissions fail to prove as a matter of law that it did not create a dangerous condition.
If the alleged perils of the aisle are found to be open and obvious, still an unresolved question of fact, that does not relieve defendant of its duty to maintain its property in a safe manner and condition, but "presents an issue of fact concerning the plaintiff's comparative fault" (Chambers v. Maury Povich Show, 285 A.D.2d 440, 440; see MacDonald v. City of Schenectady, 308 A.D.2d 125 [decided herewith]; Spannagel v. State of New York, 298 A.D.2d 687, 688-689; Tuttle v. Anne Le Coney, Inc., 258 A.D.2d 334, 335; Comeau v. Wray, 241 A.D.2d 602, 603; Morgan v. Genrich, 239 A.D.2d 919, 920). Accordingly, these factual issues must be resolved at trial.
Crew III, J.P., Spain, Carpinello and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, with costs.