Summary
holding that because the plaintiff presented expert testimony "that a reasonable inspection of the shopping cart would have given defendant notice of the wheel's defective condition," the case was properly given to the jury.
Summary of this case from Velez v. Sebco Laundry Systems, Inc.Opinion
March 28, 1988
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the interlocutory judgment is affirmed, with costs.
The plaintiff claims to have sustained injury in April 1981 due to a defective wheel on a shopping cart. While pulling the cart with her fingers between its front bars, a wheel "flew" off. As the cart went over, the plaintiff was thrown to the floor. At the trial, the evidence confirmed that the defendant Deer Park Meat Farms, Inc., had no policy regarding its shopping carts except chaining them nightly outside the store. No one was assigned to inspect, maintain or repair them. Expert testimony provided by the plaintiff's witness showed that reasonable inspection of the shopping cart would have given the defendant notice of the wheel's defective condition.
Upon a review of the record, we find the plaintiff made out a prima facie case of negligence and the case was properly given to the jury. We disagree with the defendant's contention that it cannot be held liable due to its lack of notice, actual or constructive, of the defective condition of the shopping cart (see, Sikora v. Apex Beverage Corp., 282 App. Div. 193, affd 306 N.Y. 917; Meyers v. Fifth Ave. Bldg. Assocs., 90 A.D.2d 824; Castorina v. Hills Korvette Supermarket, 39 A.D.2d 704; Murphy v Board of Educ., 20 A.D.2d 53, appeal dismissed 16 N.Y.2d 660). The defendant had a nondelegable duty to maintain the equipment on its premises in a reasonably safe condition (see, Rogers v. Dorchester Assocs., 32 N.Y.2d 553). Since there was evidence that a reasonable inspection would have uncovered the latent defect, the jury could properly conclude that the defendant was negligent and that its negligence was a proximate cause of the accident (cf., Birdsall v. Montgomery Ward Co., 109 A.D.2d 969, affd 65 N.Y.2d 913).
We also find the defendant's contention that the trial court's failure to answer the defendant's request for supplemental instructions was prejudicial to it to be without merit. Any error in this regard by the court "is not so much that an instruction is inadequate in some legal respect, but that the jury, misled by or not comprehending the original charge, remains perplexed" (People v. Malloy, 55 N.Y.2d 296, 302, cert denied 459 U.S. 847; see also, Lee v. Mount Ivy Indus. Developers, 31 A.D.2d 958). At bar, the jury, having rejected the trial court's offer to answer the questions submitted, was obviously no longer perplexed since the jury's foreman advised the court that the jury had resolved its questions and had reached a verdict. Thompson, J.P., Weinstein, Rubin and Harwood, JJ., concur.