Department Store Accident/Premises Liability

A Brooklyn registered nurse while shopping at Bed Bath & Beyond was struck by comforters, which were being stored as "top stock" on a shelf approximately 15 to 18 feet high. As a result, the customer sustained a herniated disc in the neck and aggravation of a pre-existing herniated disc in the lower back. The store argued that the customer's case should be dismissed because there was no evidence that the comforters on the shelf had not been placed properly. The store further argued there were ladders randomly situated in the store that another customer could have used to disturb the comforters and that the condition, which may have caused the comforters to fall, did not exist for a sufficient period of time for the store to restock the shelf and prevent the accident. Our investigation of the accident revealed that an assistant manager who was no longer employed by Bed Bath & Beyond had assisted in the preparation of the accident report. We subpoenaed the assistant manager for a deposition who testified that although there were ladders randomly placed throughout the store, they were for use by the store personnel only and not available to the customers. He further testified that during his tenure, he had never seen any customer ever climb or attempt to climb any of the ladders. He also confirmed that the comforters, which struck the patron, had fallen from the "top stock" shelf because the store personnel did not properly place them on the shelf. We countered the store's arguments by presenting the deposition testimony of the former assistant manager. We further argued that the store itself stocked the "top stock" merchandise and was continuously under the exclusive control of the store. The court rejected the store's arguments and denied their motion. The court further ruled that these issues presented questions of fact for a jury to decide. The case was ultimately settled before jury selection. - Abidh v. Bed, Bath & Beyond, Supreme Court, Kings County, Index No. 31975/07