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Under our civil law, the plaintiff has the burden of proof to establish by a fair preponderance of the credible evidence that the injury sustained resulted through the negligence of the storekeeper defendant. The law also recognizes there are those cases where the instrumentality that caused the injury was within the sole knowledge and exclusive control of the defendant. That being the case, there is a specific rule of evidence known as res ipsa loquitor (meaning “the thing speaks for itself”), which once raised by the plaintiff shifts the burden to the defendant owner to offer credible proof that the instrumentality that caused the injury was either not dangerous in its ordinary use, or that the instrumentality did not cause the injury claimed (or some other defense). A recent case, Bonfante v. Mane, Inc., reported in the New York Law Journal on June 26, 2012 (Nassau County, Justice Galasso), is in point. There, a patron visited a salon for a massage. She was placed on the table and when the masseuse used hand pressure on her, the table tipped, causing her to fall and sustaining injury. Presented with those facts, the Court ruled that the doctrine of res ipsa loquitor was applicable and directed that the defendant store keeper was negligent as a matter of law, thereafter setting the case down for an assessment of damages by a jury.
Although the defendant store keeper did not sue the manufacturer of the table as a third party, it had the right to do so under the law which would have charged the manufacturer of the table with having placed a defective product on the market. That was not the procedure employed in the Bonfante case since the defendant storekeeper made modifications to the table, thus removing any liability that the manufacturer would have incurred in whole or in part in the event the table that tipped and caused injury to the patron, was a defective product when delivered to the salon.
If appropriate, an experienced personal injury attorney will institute a suit not only against the storekeeper, but against the manufacturer of the defective product. This strategy is employed if the liability insurance coverage of the storekeeper is insufficient in view of the injury and resulting damages. In addition, it places a focus upon the storekeeper and manufacture as they “fight it out” among themselves, a courtroom dynamic that is strategically most helpful to the plaintiffs case.
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Finz & Finz, P.C. is a New York and Long Island personal injury law firm based out of Mineola, NY. It was founded in 1984 and is highly rated, with many honors and awards of excellence.
