Opinion
No. 13–517.
06-02-2015
Gavin CLARK and Jennifer Clark, his Wife, Plaintiffs, v. STEWART's Ice Cream Co., Defendant.
Derek J. Spada, Esq., Basch & Keegan, LLP, Kingston, Counsel for Plaintiffs. Claudia A. Ryan, Esq., Towne, Ryan & Partners, P.C., Albany, Counsel for Defendant, movant.
Derek J. Spada, Esq., Basch & Keegan, LLP, Kingston, Counsel for Plaintiffs.
Claudia A. Ryan, Esq., Towne, Ryan & Partners, P.C., Albany, Counsel for Defendant, movant.
LISA M. FISHER, J.
Plaintiff Gavin Clark brought this premises liability action against Defendant convenience store alleging that Defendant was negligent in causing his slip and fall accident on ice resulting in personal injury. Plaintiff Jennifer Clark also filed a derivative claim for loss of services, consortium, and society. This convenience store also had a gas station, which was covered by an overhead canopy shielding the gas pumps from precipitation. The canopy had an internal drainage system, wherein precipitation collected from top of the canopy would filter through pipes in the canopy and down two drainpipes on the center pillars of the canopy between the gas pumps.
On January 4, 2013, Plaintiff went to Defendant's gas station to refuel his vehicle. It was approximately 5 P.M. and was starting to get dark. The temperature was 15 degrees. He was with his friend, Russell Titolo, who was in the front passenger seat and suffers from a debilitating condition to his knees which affects his mobility. When Plaintiff got out of his vehicle, he noticed that the canopy was leaking water onto the front fender of his vehicle. Mr. Titolo also observed the leaking water from the canopy in the same area. There was no precipitation on the day of the incident.
Plaintiff did not notice any ice on the ground as he went to the gas pump, refueled his vehicle, then walked from the gas pump into Defendant's convenience store to purchase a coffee. He was wearing utility boots. When he exited the convenience store, he took a different path directly back to his vehicle door; this was a different path than when he went into the convenience store. He testified the distance between his vehicle and the store was approximately twenty (20) to thirty (30) feet. As he approached his vehicle, he was within arm's reach of the driver's side door when he was caused to slip and fall on “shiny ice” that was around his vehicle. He instantly felt pain in his arm. His coffee fell and spilled on the ground around him.
Even though Plaintiff testified he did not see the ice prior to his fall because he was not looking for it, once he was on the ground he testified that the icy patch was approximately ten (10) to fifteen (15) feet in diameter along the gas pump he parked up to. When Mr. Titolo attempted to get out of the vehicle, he observed a “sheet of ice” and could not exit the vehicle due to his debilitating condition. He was able to peer out his open door and testified the ice extended the entire space along the gas pumps. After the incident, Plaintiff pulled forward and Mr. Titolo took more photographs depicting the ice.
Defendant's representative, Mariah Parker, completed an accident report with Plaintiff. The description of the condition was an “[i]cey [sic] spot.” The description of the alleged incident and injury noted that Plaintiff was in “extreme pain” and that “he slipped on ice patch on gas island!” At some point after the accident, an additional handwritten note was added to the incident report which states that “water dips [sic] off roof of gas island calcium chloride on ground. Still icy.” It is believed that it was written by Defendant's manager.
Ms. Parker testified that her shift starts at approximately 5 P.M ., and she always arrives early around 4:45 P.M. and does a walkthrough of the area. This walkthrough includes the gas islands, where she checks the garbage cans to see if they are full and need to be emptied. She also checks the parking lot for trash or icy spots; she would apply salt on the ice if needed. She testified on the day of the incident that there was no ice present, and that she “clearly didn't see any, I guess.” She also testified that she did not observe any water dripping from the canopy. Another Defendant's representative, Lisa Hernandez, was also working that day and testified she did not observe any ice or water dripping from the canopy. Defendant's employees are responsible for handling wintery conditions, which include salting and shoveling the walkways, unless a snow removal contractor is requested for assistance.
Defendant now moves pursuant to CPLR R. 3212 seeking summary judgment dismissing the Complaint, arguing it did not have actual or constructive notice of the dangerous condition of ice, nor did it know of any prior or recurring icy condition on its premises. Defendant avers it was not aware that the canopy was broken or damaged in any way so as to create this dangerous condition. Defendant claims that its employee, Ms. Parker, inspected the parking lot at 4:45 P.M. which was up to an hour or less prior to Plaintiff's fall and is an insufficient period of time to confer constructive notice on a landowner. Further, Defendant claims that the ice was not visible and apparent, which also negates constructive notice.
Plaintiffs oppose such motion, arguing that there are multiple questions of fact as to constructive notice and whether Defendant had notice of the recurring condition. They provided multiple photographs of the scene of the incident depicting the ice and dripping canopy. Plaintiffs further contend there is significant circumstantial evidence which demonstrates that the canopy was leaking for a sufficient period of time to be discovered and remedied. In support of their motion, Plaintiffs attached the affidavit and report of a licensed professional engineer, who opined that there was a freeze-thaw cycle on the day of the incident, wherein snow on the canopy melted and dripped onto the parking lot before refreezing into ice. He also opined that there were multiple deviations from the good and accepted engineering practice, including an improperly maintained canopy and walkway.
Defendant's Reply argued that Plaintiff's expert is not qualified to give meteorological opinions and should be ignored. It argues that the expert's report relies on photographs which were not from or near the date in question. Defendant attacks the attached photographs, arguing that Plaintiffs and Mr. Titolo could not explain in the photographs what was ice and what was the spilled coffee. Defendant contends that it provided sufficient proof to meet its burden that there was no prior notice of dripping water or ice, and that Plaintiff failed to raise a triable issue of fact. Defendant further attached two affidavits of new witnesses. The first argues that there were multiple other individuals who used the same pumps and did not fall. The second affidavit demonstrated that the surveillance tape was destroyed pursuant to the retention policy before Plaintiffs contacted Defendant regarding a possible claim.
It has been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012] ; Sternbach v. Cornell Univ., 162 A.D.2d 922, 923 [3d Dept 1990].) The Court of Appeals has stated that “[n]eglience cases by their very nature do not usually lend themselves to summary judgment, since often ... the very question of negligence is itself a question for jury determination.” (Ugarriza v. Schmieder, 46 N.Y.2d 471, 474 [1979] .)
It is equally well established that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ; see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ; accord Hollis v. Charlew Const. Co., Inc., 302 A.D.2d 700 [3d Dept 2003].) Such “burden may not be met by pointing to gaps in plaintiff's proof.” (DiBartolomeo v. St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept 2010] ; accord Dow v. Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [3d Dept 2007].) This burden is also not met by raising new arguments in the reply papers. (Potter v. Blue Shield of Northeastern New York, a Div. of Blue Shield of Western New York, Inc., 216 A.D.2d 773, 775 [3d Dept 1995] ; see N.A.S. Partnership v. Kligerman, 271 A.D.2d 922, 923 [3d Dept 2000] [“reply papers are intended to address contentions raised in opposition to the motion and not to introduce new arguments in support of the motion[.]”].)
Thus, “[a] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.” (McMullin v. Martin's Food of S. Burlington, Inc., 122 AD3d 1103, 1104 [3d Dept 2014].) To place a defendant on constructive notice, the dangerous condition must have existed for a sufficient length of time before the accident as to allow defendant to discover and remedy it. (Gordon v. American Museum of Natural History, 67 N.Y.2d 836 [1986] ; accord Rivera v. 2160 Realty Co., L.L.C., 4 NY3d 837 [2005].)
Whether a dangerous or defective condition exists depends on the particular facts of each case and is generally a question of fact for the jury unless the defect is demonstrated to be trivial as a matter of law. (Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997].) In determining whether a defect is trivial as a matter of law, the court must examine the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury.” (Trincere, 90 N.Y.2d at 977 [citation omitted].)
Here, Defendant established entitlement to summary judgment through the testimony of its two representatives, primary Ms. Parker, that they maintained their property in a reasonably safe condition. Specifically, that Defendant it did not have actual or constructive notice of the ice or that the canopy was leaking because Ms. Parker allegedly inspected the premises at 4:45 P.M., which was approximately fifteen (15) minutes before Plaintiff's fall, and did not observe either condition.
There is a question as to whether the fall occurred at approximately 5 P.M., or at 5:45 P.M. which is what was recorded on the accident report.
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Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 N.Y.2d at 562 [“mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient.”].) “[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination.” (Swartout v. Consolidated Rail Corp., 294 A.D.2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ; Greco v. Boyce, 262 A.D.2d 734, 734 [3d Dept 1999] [holding courts are “to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists.”].)
Plaintiffs have raised questions of material fact precluding summary judgment. Simply put, Plaintiffs alleged there was a “sheet of ice” which spanned ten (10) to fifteen (15) feet in diameter approximately fifteen (15) minutes after Ms. Parker allegedly conducted an inspection and “clearly didn't see any, [she] guess[ed].” This is a clear question of fact, which also becomes one of credibility as to whether Ms. Parker even conducted the inspection of the gas islands. At the very least, it raises a question as to the reasonableness and adequacy of her inspection which is properly resolved by a jury.
The Court also agrees with Plaintiffs that there is sufficient circumstantial evidence for a jury to reasonably determine that Defendant had notice of this dangerous condition given the large nature of the defect. According to Plaintiffs' testimony, this sheet of ice was ten (10) to fifteen (15) feet which could account for more than half the entire area between Plaintiff's front fender—where the water was dripping—to the store entrance; Plaintiff testified the area was between twenty (20) to thirty (30) feet. Given the “width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury” (Trincere, 90 N.Y.2d at 977 ), Defendant's motion for summary judgment must be denied.
While Plaintiffs' licensed engineer is not qualified to render meteorological findings, and his opinions relating thereto were ignored (Enu v. Sobol, 171 A.D.2d 302 [3d Dept 1991] ), it is clear from the certified weather records that the temperature fluctuated between 14 and 40 degrees on January 4, 2013. At the time of the incident, Defendant's accident report recorded the temperature to be 15 degrees from Defendant's outdoor thermometer. Plaintiffs' expert can opine as to the cause of the ice, namely that the canopy was not functioning properly in that it was dripping water as opposed to funneling it down the drainpipes on the pillars. This created water on the pavement surface which could—and did—freeze in 15 degree weather. Therefore, even though Plaintiffs' expert cannot render meteorological opinions, he is still qualified to render an engineering opinion as to the defect in the canopy which was essentially unrebutted with competent evidence in Defendant's Reply. Further, no one submitted any competent evidence as to when ice began to form, but it is clear from the photographs and testimony that ice did occur and it was likely the proximate cause of this incident when viewed in a light most favorable to Plaintiffs. Moreover, a jury could reasonably conclude that it took more than fifteen (15) minutes or even an hour to form a sheet of ice that large, which again questions the reasonableness and adequacy of the inspection by Ms. Parker.
In addition, this ice was “visible and apparent” as, even though Plaintiff testified he did not see the ice until after he fell down, Mr. Titolo testified when he opened his door he saw the “sheet of ice.” The photographs submitted confirm his characterization. The fact that Plaintiffs or Mr. Titolo were unable to point out in the photographs what was ice and what was coffee is also immaterial, as both testified that ice was present and it is clear to the Court that a large coffee does not spill into a puddle ten (10) to fifteen (15) feet in diameter. (DiBartolomeo, 73 AD3d 1326 [3d Dept 2010] [cannot point to gaps in the plaintiff's proof].) Defendant's accident report also corroborates that there was ice on the ground after the incident occurred, as did the testimony of both of Defendant's representatives.
Furthermore, while both Defendant's representatives testified that they were unaware of the canopy dripping water onto the pavement near the gas pumps which could freeze to ice, the Court finds this to be a question of fact for jury determination as to whether there was a recurring condition and whether Defendant knew or should have known about it. It is also a question as to when this condition began to occur and what time, all doubts the Court has precluding summary judgment. This phenomena of water leaking from the canopy is evinced in the photographs submitted with this motion. Defendant points out that these photographs were taken at “various times” and not just on the date of the incident. This actually hurts Defendant's position, as almost all of the photographs show evidence of the dripping canopy. Thus, what is consistent in these photographs from “various times” is that the hue of the concrete is darker in the same area where Plaintiff's fall occurred; Ms. Parker even testified to this. In some of these photographs it is difficult to discern whether that darker hue is water or ice, but what is consistent is that the canopy was dripping water in that area for some period of time. While the photographs submitted were only after the incident, it is for a jury to assess the credibility of Defendant's representatives as to whether they knew or should have known it was dripping on the date of the incident during a reasonable inspection of the premises-including during Ms. Parker's inspection fifteen (15) minutes prior to Plaintiff's fall.
Defendant's argument that there was other foot traffic in the time immediately prior to Plaintiff's fall is unavailing, as it goes to comparative fault and not ultimate liability. Notwithstanding, the new affidavit submitted in Reply raised an issue for the first time which should have been submitted in the moving papers. (See N.A.S. Partnership, 271 A.D.2d at 923.) As for Defendant's argument that Plaintiff's affidavit is a ity because it argues points of law, while this practice is certainly discouraged—and law should not be contained in a sworn affidavit*—the Court will not hold counsel's mistake against an injured Plaintiff and exercises the well-established judicial preference to decide matters on the merits. (See Dodge v. Commander, 18 AD3d 943, 946 [3d Dept 2005] ; Lucas v. United Helpers Cedars Nursing Home, 239 A.D.2d 853, 853 [3d Dept] [“There is a judicial preference to decide cases on their merits.”].)
Finally as to the affidavit of Andrew Conley, which defends a possible issue of spoliation of evidence, there is no affirmative relief before the Court regarding spoliation and the Court will not address it absent affirmative relief.
The Court has considered the parties' other arguments and found that they are similarly unavailing or rendered academic.
Thereby, it is hereby
ORDERED that Defendant's motion is DENIED, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.