| Fontanelli v Price Chopper Operating Co., Inc. |
| 2011 NY Slip Op 07766 [89 AD3d 1176] |
| November 3, 2011 |
| Appellate Division, Third Department |
| Diane Fontanelli et al., Appellants, v Price Chopper Operating Company,Inc., et al., Respondents. |
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Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (James A. Resila of counsel),for respondents.
Stein, J. Appeal from an order of the Supreme Court (Giardino, J.), entered October 29, 2010 inSchenectady County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Plaintiff Diane Fontanelli (hereinafter plaintiff) was injured while shopping at defendants'supermarket when three gallon-sized water bottles fell from a shelf above her and hit her on the top andback of her head and on her arm. Plaintiff and her husband, derivatively, commenced this personalinjury action alleging that defendants maintained their property in a dangerous and unsafe manner. Theyrely, at least in part, on the doctrine of res ipsa loquitur. Defendants moved for summary judgment afterthe completion of discovery. Supreme Court granted the motion and plaintiffs now appeal.
We affirm. In support of their motion, defendants submitted the deposition testimony of plaintiffsand of Fernando Delarosa and Gregory Conti—a frozen food manager and the grocerymanager, respectively, at the subject store at the time of the accident. Plaintiff and her husband bothtestified that the bottles fell on her as she was bending down to pick up a box of water bottles on thefloor and that she did not touch anything to precipitate their fall. After plaintiff stepped back, shenoticed that the bottles had fallen from one of the top shelves and that the bottles on that shelf "were laidout very close to the edge, hanging over the edge." Plaintiff's [*2]husband testified that the water bottles were "protruding [from] the shelfby at least half . . . of the gallon container."
Delarosa's testimony established that defendants' employees would not have stocked the waterbottles in such a way that they would overhang the shelf by more than a fraction of an inch, that he hadnot heard about any incidents involving water bottles falling off the shelves in the three years that he hadworked at that store, and that the store's employees continually monitored the shelves to ensure thatthey were properly stocked. Conti testified that, in furtherance of his responsibility for ensuring that allmerchandise was properly stocked on the shelves, he walked through the aisles in the grocerydepartment approximately every 60 minutes and that all other store employees were also responsiblefor ensuring that the shelves were properly stocked on a continuing basis throughout their shifts. Contifurther testified that he had inspected the area five minutes before the accident and did not observe anydangerous conditions.
The foregoing was sufficient to establish defendants' prima facie entitlement to summary judgmentby demonstrating that they maintained the property in a reasonably safe condition, did not create theallegedly dangerous condition that caused plaintiff's injury and had neither actual nor constructive noticeof such condition (see Carpenter v J.Giardino, LLC, 81 AD3d 1231, 1231 [2011], lv denied 17 NY3d 710 [2011]; Cerkowski v Price Chopper Operating Co.,Inc., 68 AD3d 1382, 1383 [2009]). Thus, the burden shifted to plaintiffs to produce evidencedemonstrating a triable issue of fact (seeBlack v Kohl's Dept. Stores, Inc., 80 AD3d 958, 960 [2011]; Cietek v Bountiful Bread of Stuyvesant Plaza,Inc., 74 AD3d 1628, 1629 [2010]). Even viewing the evidence in the light most favorable toplaintiffs, as we must (see Kropp v Corning,Inc., 69 AD3d 1211, 1212 [2010]), we find that plaintiffs failed to do so.
We reject plaintiffs' contentions that their deposition testimony raised an issue of fact regardingwhether defendants created the condition and, in any event, that they are not required to establishdefendants' prior notice of such condition because the doctrine of res ipsa loquitur applies. Plaintiffs'testimony that the water bottles were precariously placed establishes only that the bottles were placedon the shelf by someone in an unsafe manner and does not create an issue of fact as to whetherdefendants created the condition, as plaintiffs' contention that it was necessarily defendants who did sois wholly speculative (see generally HolyTemple First Church of God in Christ v City of Hudson, 17 AD3d 947, 948-949 [2005];Campagnano v Highgate Manor of Rensselaer, 299 AD2d 714, 715-716 [2002];Wimbush v City of Albany, 285 AD2d 706, 707 [2001]).
In addition, Supreme Court properly found that plaintiffs had failed to establish one of theconditions precedent for invocation of the doctrine of res ipsa loquitur. "[T]he evidentiary doctrine ofres ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening ofan event" (States v Lourdes Hosp., 100 NY2d 208, 211 [2003]; see Norton v Albany County Airport Auth.,52 AD3d 871, 875 [2008]). For the doctrine to apply, a plaintiff must show, among other things,that "the defendant had exclusive control over the agency or instrumentality causing the event" (DeCarlo v Eden Park Health Servs., Inc.,66 AD3d 1211, 1212 [2009]; see States v Lourdes Hosp., 100 NY2d at 211-212; Schlanger v Doe, 53 AD3d 827, 829[2008]). While a plaintiff is not required to eliminate all other possible causes of the injury, he or shemust nonetheless " 'demonstrate that the likelihood of causes other than the defendant's negligence is soreduced that the greater probability lies at [the] defendant's door, rendering it more likely than not thatthe injury was caused by [the] defendant's negligence' " (Norton v Albany County AirportAuth., 52 AD3d at 875, quoting Rondeau v Georgia Pac. Corp., 29 AD3d [*3]1066, 1069 [2006]; see Dermatossian v New York City Tr.Auth., 67 NY2d 219, 227-228 [1986]).
Here, it was unrefuted that anyone entering the store had unfettered access to the water bottles,rendering it equally likely that a customer caused the bottles to be precariously placed on the shelves(see Ebanks v New York City Tr. Auth., 70 NY2d 621, 623 [1987]; DeSimone v InserraSupermarkets, 207 AD2d 615, 616 [1994]). Thus, plaintiffs failed to show that the bottles werewithin defendants' exclusive control, such that it was more likely than not that their falling was caused bydefendants' negligence. Accordingly, Supreme Court properly granted defendants' motion for summaryjudgment.
Mercure, J.P., Peters, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.