When unstable merchandise falls on your head at KMart, can you sue?
Patricia Cerrito was bending down to examine a small statue at KMart when a heavy piece of statuary fell from an upper shelf and struck her head. The piece that fell was the upper half of one of several identical items. The upper pieces of the other items were attached to the lower halves by screws, however, the piece that fell was not affixed. The trial court held that since Cerrito couldn't confirm why the one half actually fell on her, she could not sue KMart for maintaining an unstable display.
The Court of Appeals overturned this decision and held that between Cerrito's testimony, the store manager's testimony and the fact that the properly-affixed statues did not fall, Cerrito had met her burden of creating a prima facie claim that KMart employees were negligent in placing a heavy and unstable piece of statuary on the high shelf. The majority pointed out that a property owner can be held responsible for "tolerating" an unsafe condition and cannot use a lack of notice to defend an unsafe condition that it has created or which would have been discovered by reasonable inspection policies.
Judge Patrick Meter filed a dissent, arguing that someone else might have removed the screws from the piece that fell. Is that reasonably common at KMart?