The Rogak Report: 05 July 2005 ** Premises Liability - Constructive Notice **
- LIABILITY FOR 'RECURRING CONDITION' REQUIRES PROOF OF DEFENDANT'S
KNOWLEDGE AND PROOF OF CAUSATION
Sutton v. Bruno's Village Inc., NYLJ 7/01/05 (Supreme Court, Suffolk
County) (WHELAN, j)
Plaintiff claimed he slipped and fell on an unknown foreign
substance, which he believed, but wasn't sure, to be overflow from a
grease trap or cesspool system, in the parking lot behind defendants'
premises. He and his wife had walked into the restaurant from the
rear entrance, looking for friends, but left immediately once the
friends could not be located. He fell upon returning to his car. He
had not noticed the wet condition before entering and had never seen
the condition on any of his many prior visits to the establishment.
The wife did not witness the accident but claims to have seen a large
pooling of liquid in the parking lot before entering the restaurant
and stated at her deposition that she saw this condition on other
occasions but never reported it to anyone at the restaurant. The
plaintiffs did not report the incident to the defendants at that time.
Defendants' witnesses stated that they were unaware of any occasions
where the sewer system backed up or where any materials overflowed or
backed up from the grease trap. Defendants also asserted that
maintenance of the parking lot was the responsibility of the Town of
Brookhaven, pursuant to a lease agreement claimed to be in effect at
the time of the accident. Defendants also claimed that it had rained
on the night in question.
Ruling on defendant's Motion for summary judgment, the Court held:
"It is well established that a landowner is under a duty to maintain
its property in a reasonably safe condition under the existing
circumstances, which include the likelihood of injury to third
parties, the potential that any such injury would be of a serious
nature, and the burden of avoiding the risk. However, in order to
recover damages for an alleged breach of this duty, a party must
demonstrate that the landlord created, or had actual or constructive
notice of, the hazardous condition which precipitated the injury."
"Like many slip and fall cases, the critical issue here is whether
defendants had actual or constructive notice of the dangerous
condition that caused plaintiff's accident. In support of their
motion, defendants have submitted sufficient proof of their lack of
such notice to demonstrate their prima facie entitlement to judgment
as a matter of law."
"In opposition, plaintiffs argue that the cause of the accident was a
recurrent condition emanating from the grease trap or cesspool and
septic tanks. However, the conjecture concerning the multiple pumping
of the grease trap and cesspool by Mallins Cesspool Company present
only a speculative and unsubstantiated claim. The only support for
the claim that defendants had actual notice of a recurrent dangerous
condition is supplied by the affidavit of Scott Power, a non-party
who plaintiff stated approached him upon his fall. In his affidavit,
Mr. Power states that he is a personal friend of plaintiff, Thomas
Sutton, and that he was not an eye witness to the accident. He states
that as he approached the restaurant, he saw plaintiff on the ground.
He observed a large pool of wet slime-like material on the ground and
that he had seen this condition in the same area of the parking lot
on many prior occasions. He also states that on more than one
occasion he discussed the condition with the then owner of the
restaurant and urged him to correct the problem. Mr. Power does not
say that he reported this particular incident to defendants, even
though he was entering the premises."
In deposition testimony and in an affidavit from the President of the
defendant corporations, defendants claimed that they were never made
aware of any condition on the date of the accident, nor at any time
prior, concerning any problems with the cesspools or grease traps
overflowing into the parking lots. "Plaintiffs offer no proof as to
how long the wet condition was in the parking lot on the date of the
accident. No evidence was offered indicating that the wet condition
was present for a sufficient period of time so that defendants'
employees had an opportunity to discover and remedy the problem. In
the absence of such evidence, there is no evidence to permit an
inference that defendant had constructive notice of the condition.
Instead, plaintiffs allege that the cause of the accident was a
The "recurring condition" theory, which dispenses with the
requirement of actual or constructive notice of the particular
dangerous condition that causes the accident, "has never been fully
addressed by the Court of Appeals. To the contrary, in Gordon v.
American Museum of Natural History, 67 NY2d 836, the Court of Appeals
held that neither a general awareness that litter or some other
dangerous condition may be present . . . is legally sufficient to
charge [a] defendant with constructive notice."
"Since that holding, numerous Appellate Division decisions from each
Department have held that Gordon v. American Museum of Natural
History, 67 NY2d 836, supra, does not apply where a landowner has
notice of a recurring condition and fails to correct that condition."
"In fact, even absent proof that a defendant has actual knowledge of
the condition on the date of the accident, a defendant with actual
knowledge of an ongoing and recurring dangerous condition may be
charged with constructive notice of each specific reoccurrence of the
condition. The Power affidavit, with its claim that on more than one
occasion he discussed the condition with the then owner of the
restaurant and urged him to correct the problem, is apparently
offered to overcome the caselaw that holds that where plaintiff or
nonparty witnesses fail to complain to defendant about the alleged
condition, the claim of an ongoing and recurring dangerous condition
can not be established. If defendants are informed of the alleged
condition or if defendants acknowledge some evidence of the ongoing
condition, then defendants will be denied summary judgement."
"The Court notes that there are serious credibility issues with
regard to the Power affidavit, that is, his friendship to the
plaintiffs, his failure to state the times and dates of his claimed
conversations with a principal of the defendants as to the condition
in the parking lot, and his failure to report the accident at issue,
or, apparently, even his own claimed accident, to the defendants. If
the state of the law had remained constant, this Court, with the
understanding that it can not resolve an issue of credibility as a
question of law, would be required to deny the summary judgment
"However, the Court of Appeals has recently reversed the First
Department in a case which casts serious doubt over the continued
viability of the recurring condition theory. In Rivera v. 2160 Realty
Co., L.L.C., 4 NY3d 837, __ NYS2d __ (April 5, 2005)... the Court of
Appeals cited to Gordon v. American Museum of Natural History... and
held that the tenant failed to raise a triable issue of fact on the
issue of whether the landlord had constructive notice on any theory
of dangerous condition in the stairwell."
"The First Department had denied summary judgement to defendant where
plaintiff slipped and fell while descending the stairway of the
building which was littered with refuse and garbage (bottles and
liquid). Defendant argued that even if plaintiff could prove that
defendant had notice of a general condition of debris, such awareness
was not sufficient to establish constructive notice of this
particular condition. Plaintiff argued that summary judgment should
be denied since defendant failed to remedy a recurring condition
which regularly went unaddressed. In a 3-2 decision, the First
Department reaffirmed the recurring condition theory."
"Since defendant's superintendent admitted actual knowledge that
particular tenants frequently left refuse and garbage on the stairs,
liability may exist based upon a recurring condition. Plaintiff is
not required to prove that defendant had, or should have had,
knowledge of the exact item of debris which caused plaintiff to
fall . . . Moreover, the instant case is not one of a mere general
awareness that litter might be present. Rather, defendant's
superintendent admitted specific knowledge of a recurring dangerous
condition, namely, that tenants and their guests 'constantly partied'
in the stairway, the only means of egress from the building, during
the course of which they spilled liquid and left bottles, the very
condition that allegedly caused plaintiff's fall. Under such
circumstances, a defendant's summary judgment motion must be denied."
"With the reversal by the Court of Appeals, holding that there was
no 'constructive notice on any theory of dangerous condition in the
stairwell,' despite the fact that 'defendant's superintendent
admitted specific knowledge of a recurring dangerous condition', it
appears to this Court that Weisenthal v. Pickman is no longer good
law and that the dissent in that case by Justice Balletta stated the
correct view of New York law, as expressed by the Court of Appeals."
"If the recurring condition theory has any continuing viability,
there must be evidence that the condition which proximately caused
the accident was in fact a recurring event and not a transient event.
In other words, a clear, non-speculative, nexus must be shown between
the condition and the claimed recurring event. For instance, if a
condition was to recur with each successive rainfall, or with the
repeated failure of employees to close basement windows during
rainstorms, a defendant may be put on constructive notice of the
condition. In such cases, an ascertainable condition, that follows a
regular routine or pattern, can form the basis of the recurring
The court cited examples, as in a case where ice formed under a
leaking gutter with each successive rainfall, or where ice regularly
formed on a stairway as result of a leak in the roof and the absence
of gutters in the front of the building and defendant took no steps
to remedy the known condition, or where a daily delivery of milk
crates left spillage down a sloping sidewalk.
"In the instant case, plaintiff presented no direct evidence
regarding how this particular wet condition was formed or how long it
had been present. Unable to show any one act which constituted
negligence, plaintiff has resorted to a 'shotgun' charge which
combines several accusations so that when considered together, as an
aggregate, they constitute negligence. What is offered is a claim of
an unknown foreign substance in a parking lot, which had an odor,
believed to be overflow from a grease trap or cesspool system.
However, the parking lot is sprinkled with 5 or 6 separate cesspool
covers and the lot, which is used by other establishments, is
apparently still leased to the Town of Brookhaven."
"Unlike a dangerous condition such as a leak in the ceiling that
causes a puddle every time it rains, which can be anticipated and
remedied, no evidence is offered that the pooling of the liquid
occurred on a predictable, regular basis, such as, every time it
rained or after a busy Friday or Saturday night. No evidence is
offered that such a large volume of liquid came from or even could
have come from the grease trap. The offered evidence reveals that
semi-regular pumping procedures were in place concerning the
cesspools and grease trap. Aside from speculation offered by
plaintiff's attorney, no evidence is offered tending to show that the
pumping procedures followed by defendants were unreasonable.
Plaintiff has not presented evidence supporting a situation where a
known defect that occurs on a regular, ascertainable basis on the
premises, is routinely left unattended, and causes a recurring
The Court also cited Paciello v. Waldbaum's Supermarket, Inc., 231
AD2d 618, 647 NYS2d 966 [2d Dept 1996], where evidence of a recurring
hazard was held "insufficient" where the plaintiff slipped on a leafy
green vegetable on the floor of the produce aisle and the produce
manager admitted that produce sales was a 'sloppy' business and that
he cleaned the aisle twenty times a day.
Here, "in short, plaintiffs have not established the source of the
wet substance that caused the parking lot to be hazardous," and
therefore has not established causation.
"In any event, in light of the holding of the Court of Appeals in
Rivera v. 2160 Realty Co., L.L.C., 4 NY3d 837, even a defendant's
actual knowledge of a recurring condition may not constitute
constructive notice of each specific recurrence of that condition."
"In the instant case, the evidence is insufficient to establish that
the condition which caused plaintiff's fall was a recurring hazard so
as to charge the defendants with constructive notice of each specific
reoccurrence. It has not been shown that the condition was one that
reoccurred with complete regularity or that it was one caused by the
grease trap or the cesspool system. There has been no showing of any
logical nexus between the claims of prior accumulations and the
present one. The mere fact that the parking lot was wet is not
sufficient to establish a dangerous condition. Here, the evidence
supports the conclusion that the dangerous condition is one which
cannot be guarded against in advance and requires notice in order to
Accordingly, defendants' motion for summary judgment was granted and
the complaint was dismissed.