Dismissal Denied to Retail Stores in Mall Where Shopping Cart Dropped onto Accident Victim

Case: Hedges v. East River Plaza, LLC

Court: Supreme Court, New York County

Date: July 23, 2013

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

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Facts: The terrible facts behind this injury case were widely reported in the news. Two boys threw a shopping cart from the fourth floor walkway of the East River Plaza shopping center, hitting and injuring the plaintiff.

Plaintiff sued some of the stores on the fourth floor, including Bob's Discount Furniture. Bob's asked the Court to dismiss the case against it, because the cart was thrown from a common area of the mall, over which it had no responsibility. Bob's relied on a copy of its lease which was unsigned and unauthenticated by any witness. However, Bob's also claimed that the cart belonged to Target.

Bob's is known for giving free candy and ice cream to customers and plaintiff presented some evidence that this attracted minors who were unsupervised and who got rowdy and would throw candy, etc, off the fourth floor walkway. Plaintiff claims that Bob's knew about this behavior and did not notify mall security.

Costco Wholesale was also sued because it rented part of the mall's ground floor across from a parking garage pay‑box station where the shopping cart fell onto plaintiff. Costco has also asked the Court to dismiss the case against it. Costco -- like Bob's -- tries to rely on a lease which is rejected by the Court as unauthenticated.

Plaintiff argues that Costco knew that there was danger from above, to an area where customers entered and exited its store.

Held: Bob's Discount Furniture stays in the case because it may be held responsible for the behavior of the unsupervised minors it attracted to its store.

Also, while the evidence against Costco appears thin, the Court denies Costco's motion to dismiss and leaves it in the case to permit plaintiff to conduct discovery proceedings against it so as to establish her case.

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