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The Rogak Report: 05 July 2005 ** Premises Liability - Constructive Notice **

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  • Lawrence Rogak
    Message 1 of 1 , Jul 5, 2005

      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
      recurring condition."

      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
      be remedied."

      Accordingly, defendants' motion for summary judgment was granted and
      the complaint was dismissed.

      Larry Rogak
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