By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
Evidence of an improperly secured lid and a wobbly table was enough to allow a Brooklyn Supreme Court justice to grant the continuation of a personal injury case against a Brooklyn Barnes and Noble.
In 2008, Jenna Hassan and her parents, Naeem Hassan and Nesrein Hassan, entered the Barnes and Noble on Seventh Avenue in Park Slope. The Hassans ordered a hot tea and brought it back to a table inside the store. Unfortunately, the table was wobbly and the hot tea, which was placed on the table, spilled onto the infant Jenna, causing serious injury.
The Hassan’s filed suit against Barnes and Noble and Starbucks, a Barnes and Noble vendor, alleging that Barnes and Noble and Starbucks failed to adequately train their employees. The Hassans asserted that the untrained employees served unreasonably hot tea, failed to properly secure the lid onto the tea cup, and neglected to remedy, or may have even caused, the wobbly table. All of the actions, the Hassans argued, caused Jenna’s burns.
Starbucks instantly sought and was permitted dismissal from the suit. Brooklyn Supreme Court Justice Francois Rivera found that while Starbucks may distribute some of its products to the bookstore, tea is not one of them.
Further, Rivera noted in his ruling Tuesday, Starbucks does not “own, occupy, or control [Barnes and Noble],” has “no supervisory control over the manner or method that Barns & Noble employees serve their tea products,” and does not supply or control the maintenance of tables in the Barnes and Noble café. All of this is evidence that Starbucks was not the “tort owner” in this case, thus owed no duty to the Hassans, and therefore absolved Starbucks of any liability, according to Justice Rivera.
The same cannot be said for Barnes and Noble.
The bookstore chain was the owner of the property in question and therefore, as the “tort owner,” owed a duty to “maintain the subject premises in a reasonably safe condition and the burden of avoiding the risk of foreseeable injury to the plaintiffs,” Rivera noted.
When serving hot tea, a product that is inherently dangerous, one must take care that the consumer is aware of the dangerous nature of the tea (i.e., warning that the contents may be hot) and that the tea is not made unreasonably dangerous for drinking (e.g., water not made unreasonably hot). Deposition testimony revealed that Barnes and Noble serves its tea at a temperature of 200 degrees Fahrenheit. It is unclear whether or not 200 degrees is a reasonable temperature; Rivera left that issue of fact for a prospective jury to decide.
Barnes and Noble failed to show that it did not rectify in a timely manner that it was not made aware of the wobbly table, which, the Hassans allege, caused the tea to spill. The bookstore argued that it was not notified, via actual notice or constructive notice, of the uneven table.
According the New York case law, in order to disprove constructive notice of a defective condition on its premises, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the occurrence. Barnes and Noble, however, “offered no evidence as to when the table in question was last cleaned or inspected relative to the time of the plaintiff’s accident,” Rivera ruled.
With Starbucks removed from the case, the burden of liability falls solely on Barnes and Noble.
Marvin Meyerson, partner at the Long Island law firm Meyerson & Levine and counsel for the Hassans, declined to comment on the case, citing ethical considerations as the case is still pending on the trial calendar. Steven Martin of the Manhattan law firm Leahey & Johnson represented the corporate defendants.