Opinion
0026410/2006.
May 15, 2008.
DECISION AND ORDER
The follwing papers numbered 1 to 3 read on this motion: Papers Numbered
Notice of Motion/ Affidavits (Affirmations) Annexed 1 Affirmations in Opposition 2 Reply Affirmations 3Plaintiff in the instant action was involved in a "slip and fall" type accident at the defendant's store located at 519 Gateway Drive in Brooklyn, New York on July 13, 2006. The plaintiff claims that, while shopping, her left foot slipped on dishwasher detergent on the floor causing her to fall and sustain injuries. The plaintiff, in her bill of particulars alleges that the defendant had both actual and constructive notice of the condition that caused her to fall.
The defendant now moves this Court for an Order pursuant to CPLR § 3212, granting them summary judgment and dismissing the plaintiff's action on the grounds that the plaintiff cannot prove that the defendant either created the condition or had actual or constructive notice of the condition that allegedly caused the plaintiff's accident.
The plaintiff, in opposition, essentially argues that the defendant is lying, and that a genuine issue of fact exists "as to whom is telling the truth". The plaintiff contends that the liquid that she fell upon covered a large area, and that it was on the floor for "anywhere between 20 minutes and 1 hour" before she fell. She further contends that two of the defendant's employees were in the same aisle before she fell as well as when she fell, and that she witnessed them clean up the liquid. Plaintiff lastly argues that summary judgement should be denied because the defendant's witness's testimony "is suspect" and because the plaintiff and the defendant's witness offer different versions of the events that occurred at or near the time of her accident.
Summary judgment standard
The proponent of summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any materia' issues of fact from the case. See Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3d Dept 1981); Greenburg v Manlon Realty, 43 AD2d 968, 969 (2d Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).
CPLR § 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979).
Discussion
It is well settled in New York State that a landowner has a duty to keep the land reasonably safe for persons on the land, Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 568, 352 N.E.2d 868 (1976). For a landowner to be liable to a person on the land for an injury caused by a condition on the land, the plaintiff must establish three basic elements (aside from causation and injury): a dangerous condition existed on the land; the owner created or had notice of the condition; and the owner failed to take reasonable measures to protect persons on the land from the condition. A landowner's duty regarding dangerous conditions on the land exists regardless of the cause or nature of the condition. Liability may attach to a landowner whether the danger is posed by a man-made structure or device on the land, or arises from such commonplace circumstances as the spilling of liquid, or the accumulation of debris. See generally, Drake v. State, 97 Misc.2d 1015, 416 N.Y.S.2d 734, (Ct.Cl.1979), aff'd on the opinion below, 75 A.D.2d 1017, 432 N.Y.S.2d 676 (th Dept., 1980); Buckowski v. Smith, 185 A.D.2d 556, 586 N.Y.S.2d 386, (3rd Dept., 1992); Schechtman v. Lappin, 161 A.D.2d 118, 554 N.Y.S.2d 846, (1st Dept., 1990); Coslin v. La Mora, 137 A.D.2d 941, 525 N.Y.S.2d 66, (3rd Dept., 1988); Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795 (1994); Downey v. R.W. Garraghan, 198 A.D.2d 570, 603 N.Y.S.2d 222, (3rd Dept., 1993); Farina v. A.R.A. Servs., Inc., 151 A.D.2d 456, 542 N.Y.S.2d 246, (2nd Dept., 1989); Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 (1986).
Of course, the mere fact that a dangerous condition exists on a piece of property does not automatically make the owner liable for injury caused by the condition. A property owner is not an insurer of the safety of those on the land. Thus, in light of the owner's duty to exercise only reasonable care, liability normally attaches only where the owner had actual or constructive notice of the dangerous condition. See Barnaby v. Rice, 75 A.D.2d 179, 428 N.Y.S.2d 973, (3rd Dept., 1980); Piacquadio v. Recine Realty Corp., 622 N.Y.S.2d at 494; Gordon v. American Museum of Natural History, 501 N.Y.S.2d at 647; Santoni v. Bertelsmann Property, Inc., 21 A.D.3d 712, 800 N.Y.S.2d 676 (1st Dept., 2005); Zanki v. Cahill, 2 A.D.3d 197, 768 N.Y.S.2d 471 (1st Dept., 2003); Katz v. Seminole Realty Corp., 10 A.D.3d 386, 780 N.Y.S.2d 778 (2nd Dept., 2004). A landowner has constructive knowledge of a dangerous condition only where the condition is "visible and apparent" and existed for a sufficient period of time so that the owner should have discovered it, Gordon v. American Museum of Natural History, 501 N.Y.S.2d at 647. However, a property owner's general awareness that a dangerous condition may exist does not constitute notice of a particular dangerous condition, Piacquadio v. Recine Realty Corp., 622 N.Y.S.2d at 494; Gordon v. American Museum of Natural History, supra.
Even where a property owner has no actual or constructive notice of a dangerous condition on the land, the owner is liable for injuries caused by the condition where the owner's negligence, or the negligence of another person acting for the owner, created the condition, Russell v. New York City Housing Authority, 194 A.D.2d 505, 599 N.Y.S.2d 576, (1st Dept., 1993); Lewis v. Metropolitan Transportation Authority, 99 A.D.2d 246,472 N.Y.S.2d 368, (1st Dept., 1984); see also Gordon v. American Museum of Natural History, supra.
Where a landowner has a duty to take measures with respect to a dangerous condition and that duty is based on actual or constructive notice of the condition, the owner must act within a reasonable time of receiving the notice. Whether the time interval is reasonable depends on such factors as how soon someone on the land is likely to encounter the danger, and how serious a resulting injury is apt to be; Gordon v. American Museum of Natural History, 501 N.Y.S.2d at 647.
As with landowners generally, a shopkeeper has a duty to keep the premises reasonably safe for persons on it. For example, it has the duty to keep floors clear of slippery substances. Very frequently, cases involving the violation of that duty involve supermarkets and other food stores. A store owner is not liable for injuries to a person who slips on a floor unless the plaintiff establishes that the owner or its employees caused the slippery condition, or that the owner had actual or constructive knowledge of the condition. Berzon v. D'Agostino Supermarkets, Inc., 15 A.D.3d 600, 792 N.Y.S.2d 94, (2nd Dept., 2005). See also Cochetti v. Wal-Mart Stores, Inc., 24 A.D.3d 852, 804 N.Y.S.2d 857, (3rd Dept., 2005) where a customer slipped and fell on a clear substance on the floor of an aisle in the defendant's store. The court ruled that the defendant did not have constructive notice of the substance; it was not visible or apparent, there were no footprints of tracks in it to indicate that it had been present for a sufficient period of time to permit discovery, and the defendant had inspected the area one-half hour before the incident.
In addition to testimony that a store employee was actually aware of the specific dangerous condition that caused the injury, actual notice may be established by proof that an accident was the result of a recurring dangerous condition of which the store employees were aware.Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344, 783 N.Y.S.2d 661 (2nd Dept., 2004). A plaintiff unable to secure the favorable testimony of anyone else in the store is usually relegated to relying on a constructive knowledge theory. An owner has constructive knowledge of a condition only if the condition is visible and apparent and existed for a sufficient length of time prior to the accident that the owner or its employees should have discovered and cured it. Collins v. Grand Union Co., 201 A.D.2d 852, 608 N.Y.S.2d 335, (3rd Dept., 1994); Edwards v. Terryville Meat Co., 178 A.D.2d 580, 577 N.Y.S.2d 477, (2nd Dept., 1991); Benware v. Big V Supermarkets, Inc., 177 A.D.2d 846, 576 N.Y.S.2d 461, (3rd Dept., 1991). Thus, there are three essential components to a constructive knowledge case — visibility, time, and presence of an employee — and it is often very difficult for a plaintiff to establish all three.
The mere fact that a floor contains a slippery liquid substance does not establish that the substance was visible and apparent. The fact that, after a slip and fall, the plaintiff closely examines the floor and discovers the substance does not indicate that the substance was visible and apparent. In fact, the plaintiff's slipping on the substance and discovering it only after the fall is often an indication that the condition was not apparent. Collins v. Grand Union Co., supra; Edwards v. Terryville Meat Co., supra; Benware v. Big V Supermarkets, inc., supra. Similarly, even if he plaintiff establishes that the substance was visible, the mere fact that one or more employees of the owner were in the vicinity of the substance before the accident does not establish constructive knowledge. Unless the plaintiff also demonstrates that the substance was already on the floor when the employees were in the area, liability is not established. Torri v. Big V of Kingston, Inc., 147 A.D.2d 743, 537 N.Y.S.2d 629, (3rd Dept., 1989); Tyrrell v. Wal-Mart Stores Inc., 97 N.Y.2d 650, 737 N.Y.S.2d 43, 762 N.E.2d 921 (2001);Benware v. Big V Supermarkets, Inc., supra.
In Moss v. JNK Capital Ltd., 85 N.Y.2d 1005, 631 N.Y.S.2d 280, 655 N.E.2d 393 (1995), aff'g, 211 A.D.2d 769, 621 N.Y.S.2d 679, (2nd Dept., 1995), the plaintiff allegedly slipped and fell on a half-eaten plum which was on the floor of the respondent's store. The plaintiff contended that because two employees of the respondent were working in the vicinity of the plura, they must have known or should have known that it was there, and failed to remedy the dangerous condition. The Court stated:
"Contrary to the plaintiff's contention, there was no evidence that the respondent had created the allegedly dangerous condition, or had actual notice of it prior to the accident. Any finding that the plum had been on the floor for any appreciable period of time would be mere speculation. It is well settled that without evidence that the respondent created the dangerous condition or had actual notice of it, and absent a showing of evidentiary facts from which a jury can infer constructive notice from the amount of time that the dangerous condition existed, the complaint must be dismissed."
The evidence presented in this case demonstrates that the plaintiff cannot prove, as a matter of law, that the defendant either created, or had actual or constructive notice of the condition that she fell upon. The plaintiff's deposition testimony makes it explicitly clear that she neither knows where the liquid that she fell upon came from, nor does she know for how long a period of time the condition was present prior to her accident. Attempts by the plaintiff to remedy problems with her deposition testimony by carefully crafting an affidavit that contradicts or conflicts with her prior testimony will not serve to create questions of fact that would defeat a summary judgement motion. Duncan v. Toles, 21 A.D.3d 984, 801 N.Y.S.2d 359, (2nd Dept., 2005); Israel v. Fairharbor Owners, Inc., 20 A.D.3d 392, 798 N.Y.S.2d 139, (2nd Dept., 2005); Sosna v. American Home Products, 298 A.D.2d 158, 748 N.Y.S.2d 548, (1st Dept., 2002); Harty v. Lenci, 294 A.D.2d 296, 743 N.Y.S.2d 97, (1st Dept., 2002).
The plaintiff admits that the liquid that she fell upon was clear and that, despite the fact that she had been shopping for at least twenty minutes in the very same aisle where this liquid was present on the floor, she never noticed it until after she fell. If anything, the fact that the liquid that she fell upon was clear and was not obvious to her, tends to also demonstrate that the condition would not have been obvious to the defendants' employees either, and as a result, supports the defendants' contention that they had neither actual nor constructive notice of the condition. The plaintiff's assertion, in her affidavit, that the detergent that she fell upon "had to be" on the floor for "anywhere between 20 minutes and 1 hour" is nothing more than speculation on the part of the plaintiff and there is no proof in the record to support such a contention. Similarly, the plaintiff's contention that she witnessed store employees clean the liquid from the floor after she fell does not prove or establish that the defendant had either actual or constructive notice of the condition prior to the plaintiff falling.
Finally, the plaintiff offers the sworn statement of Hildreth Henry in support of her claim that the defendant had actual and constructive notice of the condition that caused her to fall. However, the statement from Hildreth Henry makes it very clear that she was not a witness to the accident and did not arrive at the scene until after the accident had occurred, and most importantly, it appears that at least some, if not all, of the information in her statement is based upon hearsay statements made to her by the plaintiff, and as such, the statement has no probative value.
The plaintiff has only offered speculation and conjecture in opposition to the defendant's motion, and conspicuously absent from her papers are any case citations or references to any applicable laws that would, in any way, serve to defeat the defendant's motion. As such, the defendant's motion must be granted.
Conclusion
Accordingly, it is
ORDERED, that the motion of defendants for summary judgement and dismissal of the instant action, pursuant to CPLR § 3212, on the grounds that plaintiff has failed to establish a prima facie case of negligence as against the defendants, is granted.
This constitutes the Decision and Order of the Court.