Appellate Court Examines Shopping Mall Store's Duty For Accident At A Shopping Mall

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A New York appellate court recently examined a retail store’s responsibility for a personal injury accident that occurred from a fall in the common area of a shopping mall.

In Athenas v. Simon Prop. Group, LP, 2020 NY Slip Op 04140 [2d Dept July 22, 2020], the plaintiff claimed that she slipped and fell on Pine Sol in an interior common area of a shopping mall. She sued the owners and operators of the mall, Simon Property Group, LP, Smith Haven Center Associates, LLC, Mall at Smith Haven, LLC and Simon Management Associates LLC (collectively referred to as “the Shopping Mall”), along with the retail tenant Cohen’s Fashion Optical Store 149, LLC, and its franchisor, D.K. Optical, Inc. (collectively referred to as “Cohen’s Optical”). The plaintiff claimed that the Pine Sol was spilled by a janitor employed by Cohen’s Optical to clean at its store on a weekly basis. The janitor testified that she spilled the liquid seconds before the accident, while walking towards Cohen’s Optical to begin cleaning. The trial court granted both the Shopping Mall and Cohen Optical’s respective summary judgment motions, and Athenas appealed.

The Appellate Division affirmed the decision that granted Cohen Optical’s summary judgment motion. The court noted that as a tenant of the shopping mall, Cohen Optical’s common law duty to maintain the mall in a reasonably safe condition was limited to those areas that it occupied and controlled or made special use of. It determined that since the plaintiff fell in a common area of the mall, that Cohen’s Optical owed no contractual or common law duty.

The court also examined whether Cohen’s Optical could be held responsible for the janitor’s actions under a respondeat superior theory. It held that Cohen’s Optical was not vicariously liable for the janitor’s conduct since she was an independent contractor. The court found that the janitor was an independent contractor because she did not have fixed work times, had several other clients that she worked for, was not on the payroll of Cohen’s Optical, was paid cash without tax withholdings, did not receive any benefits, and did not receive any supervision from Cohen’s Optical.

The Appellate Division also affirmed the decision granting the shopping mall summary judgment, because the mall did not create the condition and did not have actual or constructive notice of it.

Other New York cases have yielded similar results. For example:

• In Gonzalez v. Pathmark Stores, Inc., 251 AD2d 627 [2d Dept 1998], the plaintiff slipped and fell on a puddle in a common area of a shopping mall occupied by Pathmark and eleven other tenants. The Appellate Division determined that Pathmark owed no duty to maintain a common area of the shopping mall; and
• In Hedges v. Plaza, 2018 NYLJ LEXIS 448 [Sup. Ct., New York Cty. 2018], the plaintiff and her son left a Costco, and as they were walking across the roadway to a parking garage pay station, she was hit by a metal shopping cart thrown by two adolescent boys. The court held that Costco did not owe a duty to protect patrons from criminal activity in the common areas of the shopping center outside its store, however, it did owe a duty to provide a safe means of ingress and egress. Nonetheless, the court found that Costco was not responsible for the area where the incident occurred, as it was about fifty feet from the Costco entrance and across a roadway. Thus, the court held that this was a common area of the shopping center which was not in Costco’s control, nor a means of ingress and egress to the store.

Compare Saraceno v. First Nat’l Supermarkets, 246 AD2d 638 [2d Dept 1998]. In that case, the plaintiff slipped and fell on snow and ice on a walkway at the rear of a supermarket that was located in a shopping center. The Appellate Division affirmed the denial of the owner and supermarket’s respective motions for summary judgment because there was a question of fact as to whether the accident occurred in a common area of the shopping center.

From a risk management perspective, the following are critical points to keep in mind for retail stores:

• When entering into lease agreements, ensure that there is language that clearly defines what constitutes the demised premises, as well as a clear delineation of what areas constitute common elements and areas of a shopping center or shopping mall;
• Instruct store personnel and employees to carefully complete accident and incident reports to reflect the precise area of a fall or other accident, particularly where the area is critical to determining whether the store has any responsibility;
• Take contemporaneous photographs to document the exact area of the accident;
• Preserve surveillance of at least two hours before the accident one hour after the accident.  If possible, preserve the surveillance for the entire 24-hour-period before the accident as it may help the store’s defense counsel defend the case; and
• Obtain witness information and statements by store employees, customers, and bystanders.

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