From Casetext: Smarter Legal Research

Gordon v. American Museum of Natural History

Court of Appeals of the State of New York
Mar 25, 1986
67 N.Y.2d 836 (N.Y. 1986)

Summary

holding that the defendant was not on constructive notice because there was no evidence that the defendant or anyone else observed the dangerous condition before the plaintiff's fall

Summary of this case from Ortiz v. Wal-Mart Stores E., LP

Opinion

Decided March 25, 1986

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, David O. Boehm, J.

James A. Hamill for appellant.

Lawrence K. Katz for respondent.


MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, the complaint dismissed and the certified question answered in the negative.

Plaintiff was injured when he fell on defendant's front entrance steps. He testified that as he descended the upper level of steps he slipped on the third step and that while he was in midair he observed a piece of white, waxy paper next to his left foot. He alleges that this paper came from the concession stand that defendant had contracted to have present and which was located on the plaza separating the two tiers of steps and that defendant was negligent insofar as its employees failed to discover and remove the paper before he fell on it. The case was submitted to the jury on the theory that defendant had either actual or constructive notice of the dangerous condition presented by the paper on the steps. The jury found against defendant on the issue of liability. A divided Appellate Division affirmed and granted defendant leave to appeal on a certified question.

Plaintiff suggests, and the majority at the Appellate Division apparently agreed, that defendant could be found liable on the theory that it had created the dangerous condition (see, Lewis v Metropolitan Transp. Auth., 64 N.Y.2d 670, affg on opn at 99 A.D.2d 246, 249-250). This theory was not submitted to the jury for its consideration, however, and therefore it is not now available to plaintiff as a grounds for affirmance.

There is no evidence in the record that defendant had actual notice of the paper and the case should not have gone to the jury on that theory. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it (Negri v Stop Shop, 65 N.Y.2d 625, 626; Lewis v Metropolitan Transp. Auth., 64 N.Y.2d 670, affg on opn at 99 A.D.2d 246, 249). The record contains no evidence that anyone, including plaintiff, observed the piece of white paper prior to the accident. Nor did he describe the paper as being dirty or worn, which would have provided some indication that it had been present for some period of time (cf. Negri v Stop Shop, supra, at p 626 [broken baby food jars were dirty]). Thus, on the evidence presented, the piece of paper that caused plaintiff's fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation.

Contrary to plaintiff's contentions, neither a general awareness that litter or some other dangerous condition may be present (see, Bogart v Woolworth Co., 24 N.Y.2d 936, revg 31 A.D.2d 685) nor the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell on. Gramm v State of New York ( 28 A.D.2d 787, affd on majority opn below 21 N.Y.2d 1025) and Kelsey v Port Auth. ( 52 A.D.2d 801) are not to the contrary. In both cases constructive notice was established by other evidence and the issue was whether plaintiffs had presented sufficient evidence on the issue of causation insofar as both plaintiffs failed to specify which step they had fallen on and what condition — wear, wetness or litter — had caused them to slip. In each case, the court concluded that plaintiff had presented a prima facie case because a fall was a natural and probable consequence of the conditions present on the stairs. The defect in plaintiff's case here, however, is not an inability to prove the causation element of his fall but the lack of evidence establishing constructive notice of the particular condition that caused his fall.

Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.


Summaries of

Gordon v. American Museum of Natural History

Court of Appeals of the State of New York
Mar 25, 1986
67 N.Y.2d 836 (N.Y. 1986)

holding that the defendant was not on constructive notice because there was no evidence that the defendant or anyone else observed the dangerous condition before the plaintiff's fall

Summary of this case from Ortiz v. Wal-Mart Stores E., LP

holding that the defendant was not on constructive notice because there was no evidence that the defendant or anyone else observed the dangerous condition before the plaintiff's fall

Summary of this case from Melanson-Olimpio v. Wal-Mart Stores E., LP

holding that the case should not have gone to the jury where there was no evidence that anyone, including plaintiff, had seen the piece of paper on which plaintiff slipped prior to the accident or any evidence to indicate whether the paper had been there for some period of time

Summary of this case from Stephanides v. BJ's Wholesale Club, Inc.

holding that "a general awareness dangerous condition may be present [is not] legally sufficient to demonstrate constructive notice"

Summary of this case from Ascher v. Target Corporation

holding that neither a general awareness that a dangerous condition may be present, nor the existence of similar dangerous conditions being observed just 10 minutes prior is legally sufficient to charge the defendant with constructive knowledge of the specific dangerous condition that allegedly caused the accident

Summary of this case from Polvino v. Wal-Mart Stores, Inc.

finding the defendant lacked constructive notice where the black ice was not visible and apparent

Summary of this case from Clark v. Cumberland Farms, Inc.

finding defendant museum did not have constructive notice of paper on which plaintiff allegedly slipped and fell, absent any evidence that anyone observed paper before the accident or that paper was dirty or worn, indicating that it had been present for some time

Summary of this case from Schwarz v. Fedex Kinko's Office

finding no constructive notice when a dangerous condition existed no more than a few seconds or minutes before the accident

Summary of this case from Ascher v. Target Corporation

finding that defendant's general awareness of litter on premises was not sufficient to establish defendant's constructive notice of wax paper on which plaintiff slipped

Summary of this case from Gonzalez v. Wal-Mart Stores, Inc.

stating that constructive notice of a dangerous condition occurs when it is "visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it"

Summary of this case from Johnson v. Bon-Ton Dept

dismissing an action for lack of construction notice because "on the evidence presented, the piece of paper that caused plaintiff's fall could have been deposited there only minutes or seconds before the accident"

Summary of this case from Breitenbucher v. Wal-Mart Stores

addressing "actual or constructive notice of the dangerous condition" theory of liability in a slip and fall

Summary of this case from Taylor v. Manheim Mktg. Inc.

addressing actual or constructive notice of the dangerous condition in the context of a slip-and-fall accident

Summary of this case from Urrutia v. Target Corp.

addressing “actual or constructive notice of the dangerous condition” theory of liability in a slip and fall

Summary of this case from Lionel v. Target Corp.

In Gordon, the Court held that the property owner did not have constructive notice of the hazard created by waxy paper deposited on the owner's front steps, reasoning that the paper could have been dropped only seconds or minutes before the accident, and that "any other conclusion would be pure speculation."

Summary of this case from Sweeney v. Riverbay Corp.

In Gordon, however, there was no evidence that anyone observed the piece of paper upon which plaintiff fell prior to the accident nor was there any indication that the paper had been present for some period of time.

Summary of this case from Lesser v. Mabstoa

In Gordon v American Museum of Natural History, 67 NY2d 836 [1986], the Court of Appeals held that "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon, 67 NY2d at 837).

Summary of this case from Penda v. State

In Gordon, the Court noted there was no evidence that anyone, including plaintiff, observed the litter prior to the accident.

Summary of this case from Geltzer v. Gardens 75th St. Owners Corp.
Case details for

Gordon v. American Museum of Natural History

Case Details

Full title:DOUGLAS GORDON, Respondent, v. AMERICAN MUSEUM OF NATURAL HISTORY…

Court:Court of Appeals of the State of New York

Date published: Mar 25, 1986

Citations

67 N.Y.2d 836 (N.Y. 1986)
501 N.Y.S.2d 646
492 N.E.2d 774

Citing Cases

Michaelov v. 632 Kings Highway Realty Corp.

Further, 632 Kings demonstrated that it was not aware of any glass above the unit prior to plaintiff's…

SAXE v. N.Y. UNIV. HOSP.-DOWNTOWN BEEKMAN

"It is well settled that in order for a landlord to be held liable for injuries resulting from a defective…