Kelly v. BerberichKelly v. Berberich
Plaintiff was injured in a motor vehicle accident when the vehicle she was driving on a Poughkeepsie highway was struck by another vehicle. The accident occurred when an unattended shopping cart, allegedly propelled by strong winds, rolled down the driveway connecting the highway to the parking lot of a store owned by defendant Staples, entered the highway and caused plaintiff to abruptly decrease the speed of her vehicle. Plaintiff’s vehicle collided with the cart and, seconds later, her vehicle was struck by the vehicle traveling behind it driven by defendant Berberich.
Plaintiff commenced this action against, among others, Staples, claiming that it negligently permitted the cart to enter the roadway. Plaintiff’s theory of liability against Staples is that the design of the parking lot and driveway, which sloped down
Staples made a prima facie showing of entitlement to judgment as a matter of law on the ground that it neither created the condition through an affirmative act of misfeasance nor had actual or constructive notice of the condition (see Resto v 798 Realty, LLC, 28 AD3d 388 [2006]; see also Mercer v City of New York, 88 NY2d 955 [1996]). In support of its motion, Staples submitted the deposition testimony of two individuals who were employees of Staples at the time the accident occurred. Neither witness had seen an unattended cart move in the store’s parking lot due to windy conditions and neither witness received any complaints about carts moving due to wind. Similarly, neither witness was aware of any instances in which an unattended cart rolled from the parking lot onto the highway.
Staples also relied on the deposition testimony of both Berberich and plaintiff. Berberich, a lifelong resident of the area who frequently drove through the scene of the accident, testified that, prior to the accident, he never saw a shopping cart near the highway adjacent to the store. Plaintiff, who drove past the store approximately once a week during the five years preceding the accident, testified that on one occasion before the accident she saw a Staples shopping cart across the highway from the store on the side of the road. Plaintiff, who did not recall when she saw this cart and did not know how the cart got to that location, did not see any other Staples shopping carts on the highway prior to the accident.
In opposition, plaintiff failed to raise a triable issue of fact. The dangerous condition which is the basis of plaintiff’s claim against Staples is comprised of three elements: (1) the physical characteristics of the parking lot and driveway, (2) the presence of unattended carts in the parking lot, and (3) windy weather. Plaintiff submitted no evidence that Staples designed, constructed or negligently repaired the parking lot, the driveway, or both (see Richardson v Campanelli, 297 AD2d 794 [2002]; Thomas v Phillips, 246 AD2d 531 [1998]; cf. Torres v New York City Tr. Auth., 305 AD2d 165 [2003]; Hantz v Fishman, 155 AD2d 415 [1989]). While Staples may have permitted the sloped parking lot and driveway to exist, plaintiff has tendered no evi
Similarly, plaintiff presented no evidence that Staples had actual notice of the condition or that the condition was visible and apparent and existed for a sufficient length of time prior to the accident to permit Staples to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Plaintiff did tender some evidence regarding whether the condition was a recurring one; however, this evidence is insufficient to raise a triable issue of fact regarding constructive notice. Plaintiff’s affidavit, in which she stated that, prior to the accident, “on more than one occasion . . . [she] saw shopping carts on [both] side[s] of [the highway],” was conclusory and bereft of any detail regarding when she saw the carts1 on the side of the highway, the number of times she saw them or how they came to rest on the sides of the highway.2 Identical infirmities plague plaintiff’s daughter’s affidavit.3 Therefore, no triable issue of fact exists regarding whether an
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Accordingly, we reverse the order and grant the motion (see Zuk v Great Atl. & Pac. Tea Co., Inc., supra). Concur —Andrias, J.P., Nardelli and McGuire, JJ.
Saxe and Sweeny, JJ., dissent in a memorandum by Saxe, J., as follows: Plaintiff alleges that she was injured in an automobile accident when a shopping cart from defendant Staples’ store rolled from the driveway of the store’s parking lot onto the adjacent highway on which plaintiff was driving, causing plaintiff to stop short, in turn causing the individual defendant’s car to hit plaintiff’s car in the rear.
Material issues of fact are raised by photographic and testimonial evidence that the parking lot is significantly sloped toward the highway, that the day in question was a windy one, and that on this day the store failed to follow its practice of collecting the carts in the parking lot every hour or so, and more frequently on windy days. By allowing its carts to collect unattended for an extended period in the sloped parking lot on a windy day, Staples may be found to have thereby created a dangerous condition of carts rolling freely in the lot (cf. DiFranco v Golub Corp., 241 AD2d 901 [1997]).
These circumstances are distinguishable from those in Zuk v Great Atl. & Pac. Tea Co., Inc. (21 AD3d 275 [2005]), in which the defendant store kept its shopping carts within an enclosed corral, and the plaintiff was hit by a single cart which had somehow been removed from that safeguard; in that case, there was no evidence that the store had notice of the loosed cart. Here, the store’s carts were allowed to remain loose in the parking lot until collected by store employees. Moreover, the described wind condition was more than merely a rogue gust of wind of which the store would have had no advance notice; it was described as a windy day, a circumstance which may be found to create enough notice to the store so as to give it notice of the need to take action to prevent its carts from becoming dangerous projectiles.
Issues of fact also exist as to the relative fault of the store and the