Trial Needed to Determine Liability for Injury in Center’s Common Area

Facts: A shopper suffered severe neurological and brain injuries when two teenagers at the center where she was shopping with her son threw a shopping cart from the fourth level of the center onto her at the ground level. (As a result of the assault, the teenagers were sentenced to six months in a juvenile residential facility.) The shopper sued the center’s owners, management, and two tenants—a price club and a discount furniture store. She claimed that they were responsible for security in the area of the injury, for controlling the rowdy customers who became the assailants, and for controlling the stray shopping cart that was used as a weapon. Both tenants asked a New York court to dismiss the negligence claims.

Decision: The court denied the request and determined that a trial was needed.

Reasoning: The price club argued that the cart didn’t belong to its store and that it wasn’t responsible for maintenance of either the overhead walkway from where the cart was launched, or the place where the shopper was standing when it hit her. The furniture store tenant argued that it wasn’t liable because the shopping cart that injured the shopper didn’t belong to its store and that the allegation that it failed to provide adequate security for its customers is too broad and vague. (The shopping cart belonged to a big-box tenant in the center.)

The court said that there were unanswered questions about the price club’s possible culpability, such as witnesses’ statements indicating that its shoppers had complained in the past about food and beverages being thrown from the walkway to the area where the shopper was hit in the head.

The court described the evidence at this stage as inconclusive—leaving open the important question of whether the shopper was injured in an area necessary for “egress from or ingress to” the price club and where store employees and management were aware of imminent danger from overhead. The court noted that the “business proprietor’s duty to provide a safe environment for members of the public whom the business invites into its store extends to customers’ means of egress and ingress.” Thus, if someone is injured in an area necessary for egress or ingress where it was reasonably foreseeable that customers exiting or entering would be exposed to danger, those facts would raise the further question regarding the extent of the price club’s duty to those customers, including this shopper, even if that duty is only to warn them, the court pointed out.

The court also said that some facts must be clarified before the furniture store tenant could be relieved of liability, such as whether the store’s habit of offering free beverages, candy, and cookies to customers contributed to the shopper’s injuries. The shopper argued that the free sweets attracted unsupervised minors who had become unruly and had to be expelled from the store on other occasions. The shopper offered evidence attesting that, for approximately two years leading up to the incident, the store had been attracting unsupervised minors inside with free beverages, candy, and cookies, where the minors often became disruptive. After the store expelled the minors from inside the store, its employees had observed these minors throwing candy and other objects off the fourth-level walkway. Security personnel for the shopping center had complained about this misbehavior to store employees, who had reported these complaints to the store management.

The shopper claimed that the store’s video recording corroborates that, on the day of the incident, the store and the boys involved acted consistently with this pattern. The store was offering free beverages and food and attracted the boys inside. They became disruptive, so the store expelled them into the mall, but never notified security personnel or anyone else that the boys posed a risk.

Thus, the court noted, according to the complaint, the furniture store tenant was aware of a situation that frequently posed a risk to the shopping center’s other tenants and customers. The shopper’s lawsuit asked the question whether it was reasonably foreseeable to the furniture store tenant that expelling the troublesome boys from the store to cause disruption outside the store, without any further action to address their misbehavior, would result in injury to people or property outside.

Consequently, the court denied the price club tenant’s and the furniture store tenant’s request to dismiss the case. It said that, moreover, both tenants offered evidence that refuted their responsibility for the shopping cart that had been used to injure the shopper and refuted their responsibility for maintenance or security in the shopping center’s common areas—despite the fact that the shopper’s claims against the tenants aren’t premised on negligent maintenance of the premises or carts. Rather, the shopper alleges that the furniture store tenant negligently supervised its invitees and that both tenants negligently failed to warn or take other precautions to protect shopping center customers from a danger that the stores were aware of and in a position to prevent.

• Hedges v. East Riv. Plaza, LLC, July 2013