E.J. Fink

Significant Representative Matters: Obtained a summary judgment in a premises liability case that had been in litigation for almost a decade. The plaintiff claims to have tripped and fallen on June 1, 2015 in a supermarket chain store in Newburgh, NY on the corner of a pallet/box of watermelons in the store's produce section where customers first walk in. There was video capturing the incident which the court had as an exhibit. Notably, the plaintiff admitted she did not see the pallet or the corner of it and was not looking where she was walking. After falling, she refused medical attention and continued shopping and walked home. She came back the next day with her husband to report the incident. She regularly used this supermarket every week. Ultimately, she underwent multiple surgeries including cervical fusion and her attorney's demand was $4 million. The defense motion argued that the watermelon pallet was a temporary merchandise display which was open and obvious to all to be seen with common sense. Indeed, customers walked by the pallet display just minutes before and after the plaintiff's accident at a rate of dozens per day. The store put the watermelons out in this manner as part of display policy and because the watermelons are delivered in cartons on pallets that cannot be taken apart. The plaintiff argued in opposition that the pallet was a hazardous defect which the store created and had notice of. They submitted an expert engineer claiming the display violated American Society of Testing Materials (ASTM) designation F1637-10 regarding safe walkway surfaces. In reply, E.J. submitted a rebuttal engineer that demonstrated the ASTM standard asserted by the plaintiff applied to permanent structures like floors and buildings -- not the temporary pallet -- and that the standard did not exist on the day of the accident. Moreover, the ASTM was never codified in NY state law or local Newburgh ordinance. In granting summary judgment, the court concluded that while a landowner must act reasonably in maintaining its property in a reasonably safe condition, it is not an insurer of ordinary obstacles that are readily apparent as a matter of common sense and visibility.