Acme argued that it should be dismissed as a defendant because it does not tell J B employees how to stock shelves and has no duty to oversee their activities.
Heine’s attorney argued that Acme has a duty to protect its shoppers and that a jury should decide whether it was negligent.
Jurden said the case is similar to one involving a different grocery company, an employee of an ice cream company who was stocking product, and a shopper who slipped and fell in the frozen food aisle. In that case, the Delaware Supreme Court ruled that a jury could conclude that the grocer or the ice cream company should have known that stocking ice cream might result in condensation dripping onto the floor.
“Both allegedly unsafe conditions resulted from the activity of a third party. And both third parties performed their activities without the supermarket’s oversight,” Jurden wrote.
Based on the previous Supreme Court ruling, Jurden concluded that a jury must decide whether Acme was acting as a “reasonably prudent shopkeeper” when it failed to prevent the Tastykake collision.