Retailers should be weary of holiday shoppers this season, particularly in light of the Second Department’s recent decision siding with a customer who tripped and fell on a low table in a Hollister Co. store.

Defendant moved for summary judgment on the basis that the placement of the table was open and obvious, and further that plaintiff walked in an area not meant for ingress/egress. In support of its motion, defendant submitted plaintiff’s deposition transcript, where plaintiff testified that he did not see the table before falling because the store was dark, and the low table was obscured by a taller, larger table placed near it.

The Second Department overruled the lower court’s dismissal, finding that defendant failed to establish, prima facie, that the condition created by the subject table was open and obvious in light of the surrounding circumstances despite defendants submitting evidence as to the lighting conditions and presence of other customers in that area.

The Court also noted that the testimony of defendant’s employees further demonstrated that the area traversed by plaintiff was an “egress,” which made a possible accident more foreseeable.  Thanks to Theresa Dinh for her contribution to this post.  Please email Brian Gibbons with any questions.