Cat Food Raining Down on Shopper Is Not Proof of Negligence (NY)

In premises liability actions, the plaintiff must prove that a commercial business either created a hazardous condition or, alternatively, had notice of the condition in sufficient time to address it.  This element can be satisfied either by proof of actual or constructive notice, i.e. the condition was present for sufficient amount of time that the business should reasonably have discovered and corrected it. To meet this burden, plaintiffs sometimes turn to experts.   However, even experts can have some difficulty establishing a factual basis for notice – if they overreach New York courts may find their opinions speculative and unsupportive.

McNee v. ShopRite.  Therein, the plaintiff alleged that she was injured when cases of canned cat food stacked in the aisle of the defendant’s supermarket fell on her.  The defendant demonstrated that when it stacked the canned cat food, it was not a dangerous condition.  Moreover, it denied actual or constructive notice of a hazardous condition at any time prior to the incident.  The plaintiff retained an architect to dispute the defendant’s defenses.  However, the court found that the architect’s opinions were speculative and conclusory.  As such, the second judicial department affirmed summary judgment in the store’s favor.

The moral of the story is that an expert’s opinion is only as good as the facts upon which it is based.

Thanks to Johan Obregon for his contribution.

For more information, contact Denise Fontana Ricci at