Keyser v KB Toys, Inc.

[*1] Keyser v KB Toys, Inc. 2010 NY Slip Op 50486(U) [26 Misc 3d 1240(A)] Decided on March 17, 2010 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2010
Supreme Court, Suffolk County

Joy Adrienne Keyser and GREGORY KEYSER, Plaintiffs,

against

KB Toys, Inc., KB TOYS, INC., et al., KB HOLDINGS, INC., KB HOLDINGS, L.L.C., BRIDGEHAMPTON KAY-BEE TOY, INC., KAY-BEE TOY & HOBBY SHOPS, INC., K.B. CONSOLIDATED, INC., KAY-BEE CENTER, INC., KB TOYS RETAIL, INC., and KB TOYS (US), INC., Defendants.



01296-2004



Salenger, Sack, Schwartz & Kimmel, LLP

Attorneys for Plaintiff

233 Broadway, Suite 950

New York, New York 10279

Fiedelman & McGaw

Attorneys for Defendants

Two Jericho Plaza

Jericho, New York 11753-1681

Peter H. Mayer, J.

Plaintiff brings this application pursuant to CPLR §4404(a) to set aside a verdict in favor of the defendants and direct that judgement be entered in favor of plaintiffs, or, in the alternative, grant a new trial as the verdict is against the weight of the credible evidence. The application for relief is [*2]predicated primarily on the doctrine of res ipsa loquitor.

Plaintiff, Joy A. Keyser, was injured on December 8, 2003 while looking at merchandise in a KB Toy Store in Bridgehampton, New York. She was hit in the head, back and neck with boxes that fell from an overstock shelf.

Plaintiffs proceeded to trial on claims of active negligence by two unidentified KB Toy employees and res ipsa loquitor. The matter was tried in this Court commencing on September 9, 2009 and concluding on September 14, 2009 with a verdict in favor of the defendant.

The trial evidence here establishes that at about 8:30 pm on the evening of December 8, 2003 the plaintiff and her husband entered the KB Toy Store in Bridgehampton, New York. December 8, 2003 was a Monday night. Upon entering, the plaintiff immediately went to the far right aisle of the store in order to view a video game display while her husband went to the left towards the cash register. While standing in the aisle, the plaintiff noticed two KB employees stocking an overstock shelf. The overstock shelf was reserved for employees only and was accessed by store personnel with the use of a ladder. One employee handed another inventory who was on the ladder, who in turn placed it on the overstock shelf and pushed the material toward the front of the store in the direction of the plaintiff.

Plaintiff was in the store approximately five minutes viewing the video game display when a number of boxes from the overstock shelf above fell on her. The plaintiff described the boxes as approximately three by three and brightly colored. The plaintiff is 5'2". No one was in the store, other than the plaintiff, her husband and employees at the time.

Two former employees of KB Stores testified for the defense. Jennifer Train, in December 2003 was a district sales manager. Previously she had been a training store manager and had one store that she managed and three to four stores, including Bridgehampton, that she visited once a month. When she became district sales manager, she supervised 12 to 15 stores but stated her visits to Bridgehampton increased to once every two weeks. She testified the shelf above the plaintiff was approximately seven to seven and one-half feet high. There was also a six inch carpeted step at floor level. Train stated that the purpose of the overstock shelf was to keep excess merchandise out of the customers reach. The ceiling was ten feet high.

On the right side aisle, there was a "peg-board" section that contained a system to display video game cases, the real games being kept behind the counter. The peg board ran approximately thirty feet. After that section was a gap of about eighteen inches after which shelving began. Above the regular shelving was an overstock shelf seven to seven and one-half feet high. There was an overstock shelf of the same height above the "peg-board" section.

The overstock shelf was to stock merchandise that was the same as the items stored directly below it so that as items are sold from the shelves available to the customers, they could be restocked by having an employee access the overstock shelf and resupply the consumer shelves just below it. [*3]She could not recall any customer attempting to seize an item from the overstock shelf in the Bridgehampton store but she did see such attempts in her prior retail experience in other stores. She opined that no one could reach the overstock shelf without the use of a ladder or step stool unless they were over six and one-half feet tall.

Jackie Oquendo, also called by the defense, worked for KB Toys in Bridgehampton from September 2003 to the approximate time of the incident. Ms. Oquendo felt she quit the defendant's employ approximately December 2, 2003. There was, however, evidence of a business card with her handwriting having been given to plaintiff's husband just after the incident. She said she quit because, after ten years in retail, she felt the store was disorganized. She stated the peg board video display case was approximately fifteen feet long before the gap. She agreed with Ms. Train there was a three inch molding surrounding the overstock shelf which would have to have been breached in order to have a box fall. She stated she has witnessed customers reaching up for things on the higher shelves in her past experience. She said it does not happen frequently and although this was Christmas season, it is the weekends that are busy, not the weekdays.

She further testified that the age group of the people by the video displays that she observed on prior occasions were between 16 and 25 years, mostly male. The witness insisted she wasn't there either during or after the accident.

In order for the doctrine of res ipsa loquitor to apply, the plaintiff must establish three elements:

1)the event must be of a kind which ordinarily does not occur in the absence of someone's negligence;

2)it must be caused by an agency or instrumentality within the exclusive control of the defendant ;and

3)it must not have been due to any voluntary action or contribution on the part of the plaintiff (States v Lourdes Hospital, 100 NY2d 208, 762 NYS2d 1; Kambat v St. Francis Hospital, 89 NY2d 489, 655 NYS2d 844).

Res Ipsa Loquitor is not a separate theory of liability but rather a "common sense application of the probative value of circumstantial evidence" (Abbott v Page Airways, Inc., 23 NY2d 502, 297 NYS2d 713). Where the actual or specific cause of an accident is unknown, the doctrine allows fact-finders, in certain circumstances, to infer negligence merely from the happening of an event and the defendant's relation to it (Kambat v St. Francis Hospital, supra ). The doctrine is "nothing more than a brand of circumstantial evidence" (Merejon v Rais Const. Corp., 7 NY3d 203, 818 NYS2d 792). The doctrine may be applied even where some of the circumstances are known, as long as the actual specific proximate cause of the accident remains unknown (Bonura v KWK Asso. Inc., 2 AD3d 207, 770 NYS2d 5). The control element requires that the evidence afford a rational basis for concluding that the defendant had responsibility for causing the accident (Dermotossian v New York City Transit Authority, 67 NY2d 219, 501 NYS2d 784). The requirement does not mean that "the possibility of other causes must be altogether eliminated, but only that their likelihood must be so [*4]reduced that the greater probability lies at the defendant's door." Id.

The power to set aside a jury verdict and order a new trial is an inherent one, which is codified in CPLR § 4404(a) (see, McCarthy v Port of NY Authority, 21 AD2d 125, 127, 248 NYS2d 713 ; Siegel NY Practice, Sec. 406.) The statute provides that a Court may order a new trial "when the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree."

Whether a jury verdict is against the weight of the evidence is essentially a discretionary and factual determination (Nicastro v Park, 113 AD2d 129, 495 NYS2d 184 [1985]). This question is distinguished from the assessment of whether a jury verdict, as a matter of law, is supported by sufficient evidence (Cohen v Hallmark Cards, 45 NY2d 493, 410 NYS2d 282, accord, Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528, 415 NYS2d 634). To sustain a determination that a jury verdict is not supported by sufficient evidence as a matter of law, there must be no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury, on the basis of the evidence presented at trial (Cohen v Hallmark Cards, supra ). The result of such a determination leads to a directed verdict terminating the action.

The criteria to set aside a jury verdict as against the weight of the evidence is less stringent as such a determination results in a new trial and does not deprive the parties of their right to ultimately have all disputed facts resolved by a jury.

Setting aside a verdict as against the weight of the evidence requires a discretionary balancing of many factors (Cohen v Hallmark Cards, supra at 499). The discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution as a successful litigant is entitled to the benefits of a favorable verdict. Fact finding is, in general, the province of the jury, not the trial court (Nicastro v Park, supra ; Ellis v Hoelzel, 57 AD2d 968, 394 NYS2d 91).

Particular deference has traditionally been accorded to jury verdicts in favor of defendants in tort cases because the jury need not necessarily find that a defendant has prevailed by a preponderance of the evidence but rather may simply conclude that the plaintiff has failed to meet the burden of proof required (Nicastro v Park, supra ; Siegel, NY Practice, Sec. 406).

Thus, it has been stated that a jury verdict in favor of a defendant should not be set aside unless "the jury could not have reached the verdict on any fair interpretation of the evidence" (Tripoli v Tripoli, 83 AD2d 764, aff'd 56 NY2d 684; Cubeta v York International, 30 AD3d 557, 818 NYS2d 136 [2006]).

A similar "fair interpretation" standard came to be applied to jury verdicts returned in favor of plaintiffs (Moffatt v Moffatt, 86 AD2d 864, 447 NYS2d 313, aff'd 62 NY2d 875; O'Boyle v Avis Rent-A-Car-Sys., 78 AD2d 431, 439, 435 NYS2d 296; Yanamoto v Carled Cab Corp., 66 AD3d 603, 888 NYS2d 29). Essentially, the "fair interpretation" standard mandates that the verdict be given [*5]great deference unless it appears that, upon review of the trial record, the verdict was not a fair reflection of the evidence presented (Nicastro v Park, supra ).

As applied in this case, the plaintiffs contention that they are entitled to judgment as a matter of law pursuant to CPLR § 4404 is without merit. This claim is determined by evaluating whether there is any line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial (Cohen v Hallmark Cards, supra ). Here, a rational person could conclude that the plaintiff was not injured by the active negligence of the two unidentified employees of the defendant in pushing boxes along the overstock shelf over the display shelving in the direction of the plaintiff.

In his summation, defendant, without objection, argued, inter alia, as follows: defendant should not be held liable unless they had notice or a "chance to remedy the situation . . . but if you don't know the condition was there, you can't infer [negligence]. It is not foreseeable that something would fall if you don't know it was there to begin with. So you can't infer negligence just because there is a condition if you don't know what the condition is. Okay." [trial transcript - page 469]. The plaintiff argues that no objection was made to these comments as the Court had previously admonished counsel not to interrupt summation causing him to make a tactical decision not to object. This claim is without merit. An analysis of the trial record reveals that plaintiffs' counsel objected six times during defendant's summation. Plaintiff was sustained three times and overruled three times.

The first objection was overruled but came with an admonition to defendant's counsel to refrain from commenting on the Court's instructions. The second objection was sustained. The third objection raised almost immediately after the second was overruled but with an explicit admonition to defense counsel on what he could and could not comment on concerning EBT testimony. At the end of this admonition the Court stated to both parties out of the presence of the jury the following: "Now, gentlemen, you know, let's try to proceed so we don't have a series of interruptions here. I'm not suggesting that you shouldn't object when you feel you have to object; that's entirely appropriate but let's be guided accordingly." [emphasis added].

The next objection was sustained, immediately followed by another objection resulting in no specific ruling but rather a warning to defense counsel. The next objection was sustained the Court then invited both parties up at which time the Court re-instructed defense counsel on its views concerning comments on prior statements, in this case EBT testimony of witnesses.

There was no objection by plaintiffs' counsel after summation concerning the defendant's reference to "notice."

The record reflects, therefore, that plaintiffs' six objections were sustained or resulted in admonitions or instructions to defense counsel to stay within the boundaries of proper summation. [*6]

As noted, the plaintiff also predicated his claim on the theory of res ipsa loquitor. The "exclusive control" element in proving liability of a defendant under the theory of res ipsa loquitor does not require proof of actual or constructive notice (see, Fyall v Centenial Elevator Industries, Inc., 43 AD3d 1103, 843 NYS2d 137 [2007]. In the Fyall case, the plaintiff was injured when the elevator she was riding descended rapidly and came to an abrupt halt, out of alignment with the floor. Supreme Court dismissed the complaint on defendant's prima facie showing that it had no actual or constructive notice of the condition. The Appellate Division, Second Department reversed as the plaintiff's claim was sufficient to support liability on the theory of res ipsa loquitor notwithstanding the absence of proof regarding actual or constructive notice (see also, Jappa v Starrett City, 67 AD3d 968, 888 NYS2d 776[Nov. 2009]).

The Court finds it was totally inappropriate for the defendant to inject a notice element into the case in summation given that such an element is irrelevant to the proof in an active negligence or res ipsa loquitor case.

In this matter, it is undisputed that the plaintiff and her husband were in the defendant's store at approximately 8:30 pm on December 8, 2003, a Monday night. There is no evidence in the record to contradict the plaintiff's testimony that no one else was in the store except employees. There is no dispute that the plaintiff was standing in the area of the peg board on the right aisle looking at video game titles to compare to her Christmas list. There is no dispute that boxes fell from the overstock shelf and hit plaintiff causing injury. There is no evidence, and therefore no dispute save for a suggestion without evidentiary basis, that plaintiff engaged in any act which resulted in her injury. It is undisputed that the plaintiff is 5' 2" and could not reach the overstock shelf unassisted. The peg board section ran between approximately 15 to 30 feet before the 18 inch gap and shelving began. There was an overstock shelf containing merchandise above the peg board about 7 to 7 ½ feet high. The employees were pushing boxes of material along the overstock shelf above the regular shelving.

The evidence offered to defend against the element of exclusivity of control consisted of testimony by two former supervisory employees. Ms. Train opined that she could not remember any customer ever attempting to seize an item from the overstock shelf in Bridgehampton although she saw such attempts during her prior experience in retail in other stores. Ms. Oquendo testified that she had seen customers reach for the "higher shelves." but this was something that did not happen frequently at the Bridgehampton store and although this was the Christmas season, it was the weekends that were busy and not the weekdays. Further, the jury was left to infer that the term"higher shelves" meant the overstock shelf. The incident occurred on a Monday night. This witness testified that the people who would be viewing the video displays were between 16 and 25 years of age, mostly male. Both witnesses opined that it was possible that a customer could have reached up to the overstock shelf.

Notably, neither witness was present on the day in question. Ms. Oquendo thought she quit on or about December 2, 2003, but was unclear in her memory about when she was there. Neither witness offered anything regarding when, if ever, they observed a customer reaching for the [*7]overstock shelf in the Bridgehampton store, let alone whether they were 16 - 25 year old males. This testimony is, therefore, an invitation to speculation. It came into the record without objection. The evidence by Ms. Train that it might have been possible for a customer to reach for an item on the overstock shelf is speculation. The presence of this testimony asks the fact finder to believe that customers sometimes reach up to the overstock shelf and therefore infer that someone actually did access the overstock shelf, and further infer that it was somebody between 16 and 25, and further infer that the person responsible was male and further infer that this was the most likely explanation because it was Christmas season, even though the event occurred on a Monday night, a period of time when it was not busy and no other customer was present in the store. The above violates our principles of law governing the proper use of circumstantial evidence and the permissible inferences that may be drawn therefrom. It has the propensity to mislead and thus confuse the fact finder.

Mr. Keyser testified that he looked at the shelf above the video games after the accident and saw boxes that contained exercise mats. He saw the boxes on the floor were the same kind that were on the overstock shelf above the video display.

The fact that some testimony in the record has created a factual issue does not deprive a trial judge of the power to intervene in an appropriate case (Lion v St. John's Queens Hosp., 86 AD2d 863, 447 NYS2d 315, Nicastro v City of New York, supra ). Rationality is the touchstone for legal sufficiency, while fair interpretation is the criterion for weight of the evidence (O'Boyle v Avis Rent-A-Car, supra ).

In res ipsa loquitor cases, an inference of negligence may be drawn solely from the happening of the accident upon the theory that "certain occurrences contained within themselves a sufficient basis for an inference of negligence. (Dermatossian v New York City Transit Authority, 67 NY2d 219, 501 NYS2d 784 [1986]). The exclusive control requirements mandates that the evidence afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it (Id). The requirement does not mean that "the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at defendant's door (Id).

The Fourth Department applied these principles in Durso v Walmart Stores Inc., 270 AD2d 877, 705 NYS2d 157 [4th Dept 1990]). In Durso, the plaintiff sustained personal injuries when boxes fell off an overhead riser striking her. The boxes were stacked four feet high on the riser, which was six feet off the floor. Although the shelves below the riser were intended for direct customer access, merchandise on the riser was for restocking only. A special ladder was used by employees to access the riser. The Durso Court noted that the exclusivity element is not an inflexible or absolute requirement, citing Dermatossian, supra .

In Ciciaralli v Aames Dept. Stores, 162 AD2d 996, 557 NYS2d 787 [4th Dept. 1990]), the plaintiff was examining a display in defendant's self-service department store when several television trays located on the top shelf of a display on the aisle behind her fell off the shelf, striking the plaintiff in the back of the head and neck. The television tray was part of a display and not a sale [*8]item. The Court, in Ciciaralli, rejected defendant's argument that it did not have exclusive control since there was no direct proof of third parties tampering with the display. The display was five feet above floor level and the Court concluded it was unlikely the accident was caused by the actions of a third party and more probably it was caused by defendant's negligence.

The evidence supporting the three elements must afford a rational basis for concluding that "it is more likely than not" that the injury was caused by defendant's negligence (Kambat v St. Frances Hospital, 89 NY2d 489, 655 NYS2d 844 [1997]). All that is required is that the likelihood of other possible causes of injury be so reduced that the greater probability lies at the defendant's door (Restatement [Second] of Torts, Sec. 328 D Comment [e]).

In reviewing the trial as a whole, the Court must determine whether the conclusion was a fair reflection of the evidence. In performing this analysis, great deference must be accorded the jury verdict. While this tilts the scale in favor of the verdict's survival, it leaves the Court with discretion when reviewing the trial record in order to determine whether the verdict in question could have been reached on any "fair interpretation" of the evidence.

Instructive in this regard is the Second Department case of Cubeta v York International, 30 AD3d 557, 818 NYS2d 136 [2006]). [FN1] The plaintiff in this case was injured while opening his truck to receive a delivery when a box of equipment slid off another box from a forklift being operated by the warehouse manager. Plaintiff brought his claims based on common law negligence and res ipsa loquitor, both of which resulted in defendant's verdict and a subsequent denial by the trial court to set aside the verdict pursuant to CPLR § 4404(a). While affirming that the jury could have properly rejected the defendant's common law negligence claim of a defective blade on the forklift, the Appellate Division Second Department reversed on the theory of res ipsa loquitor finding "the evidence that the defendant bore some responsibility in the happening of the accident so preponderated in favor of the plaintiff that a jury verdict on the issue of liability in favor of the defendants could not have been reached on any fair interpretation of the evidence (citing, Lolik v Bib v Supermarkets, 86 NY2d 744, 631 NYS2d 122 [1995]).

The adjective "fair" is a broad concept and is synonymous with "just, equitable, evenhanded, honest, impartial and reasonable." (Black's Law Dictionary, Fourth Edition). In fairly evaluating the record, the Court concludes that the evidence, particularly that of non-exclusivity of control, amounted to speculation. Without such speculative evidence, there is nothing in the trial record from the defendant or on cross-examination of plaintiff's case that supports anyone other than the defendant being responsible for the happening of the accident.

Moreover, the defendant's argument regarding the non-existent requirement of notice in summation only served to create confusion in the fact finders, notwithstanding the Court's charge.

For these reasons, the Court concludes that the verdict as reported does not fairly reflect the [*9]evidence and that an objective evaluation of such evidence so preponderates in favor of the plaintiff, that the verdict must be set aside pursuant to CPLR § 4404a.

The Clerk is directed to remit the matter to the Calendar Control Part for further proceedings.

Dated: March 17, 2010______________________

Peter H. Mayer, J.S.C. Footnotes

Footnote 1:This Court tried the Cubeta Matter on remand which resulted in a plaintiff's verdict.