A successful defense by Goldberg Segalla partners Todd R. Harris, a member of the firm’s Retail and Hospitality practice group, and Brendan T. Fitzpatrick, co-chair of our Appellate practice, saved a major department store as much as six figures in a personal injury suit that came to its end before the New York State Appellate Division, Second Department.

In a lawsuit against our client, a woman alleged that she tripped and fell while walking across an area rug in a furniture display at the store. The rug, she claimed, was a carpet remnant with a flipped-up corner. In tripping on it and falling, she sustained a rotator-cuff tear requiring surgery, according to the suit. But, under Todd’s questioning, the plaintiff testified at a deposition that just before starting across the rug she thought it looked flat. Arguing that a flat rug is not inherently dangerous, Todd moved for summary judgment and dismissal of the case. Also casting doubt on the suit was the store’s policy against using carpet remnants in furniture displays; it was an area rug that the plaintiff had crossed.

Opposing counsel argued against Todd’s motion, saying the plaintiff got only a fleeting glance of the rug before crossing it. The plaintiff also accused the defense of spoliation, or getting rid of evidence, because the store display where the accident occurred had since been changed and the rug discarded.

The judge denied our motion for summary judgment, explaining his ruling by saying only, “There is a question of fact.” Brendan drafted and argued the appeal, and on February 13, 2019, the Appellate Division reversed the trial judge’s decision and granted our motion for summary judgment, holding that a flat rug is open, obvious, and not inherently dangerous. The court also ruled that our client was not engaged in spoliation of evidence by changing a furniture display.

The firm’s nationwide Retail and Hospitality Practice Group offers strong defense, comprehensive counsel, and long-term strategic guidance to all types of national and international retail, hospitality, and commercial development businesses. With attorneys strategically positioned throughout the firm’s 22-office footprint, our interdisciplinary practice serves in a variety of capacities for clients in the retail and hospitality sector. This includes providing and coordinating creative and cost-efficient defense against all manner of liability claims, counseling on employment and labor concerns, handling transactions and corporate law matters, developing company-wide risk-management plans, and acting as a long-term strategic partner.