In Ciciarelli v. Ames Dept. Stores, 162 AD2d 996, 557 NYS2d 787 [4th Dept. 1990]), the plaintiff was examining a display in defendant's self-service department store when several television trays located on the top shelf of a display on the aisle behind her fell off the shelf, striking the plaintiff in the back of the head and neck.
The television tray was part of a display and not a sale item.
The Court, in Ciciarelli, rejected defendant's argument that it did not have exclusive control since there was no direct proof of third parties tampering with the display.
The display was five feet above floor level and the Court concluded it was unlikely the accident was caused by the actions of a third party and more probably it was caused by defendant's negligence.