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New York Court Discusses Constructive Notice in Premises Liability Cases

Earlier this year, the Appellate Division of the Supreme Court of New York, Third Department reviewed the issue of constructive notice in a slip and fall case and how much evidence must be produced in order to survive a summary judgment motion and proceed to trial.

The case was Mary Black v. Kohl’s Department Stores, Inc. The plaintiff, Mary Black, tripped and fell in a Kohl’s department store when she got her foot caught in a purse that was lying on the floor in the aisle. The department store moved for a summary judgment, arguing that there was no material issue of fact to be decided, and that Kohl’s was entitled to judgment in its favor as a matter of law. The trial court agreed and dismissed the lawsuit. The plaintiff appealed. The appeals court reversed the order and denied the motion on the ground that the plaintiff did in fact raise a triable issue concerning whether the store had constructive notice of the dangerous condition.

According to the court, when the defendant moves for summary judgment in a premises liability case, it must show that it “maintained the premises in a reasonably safe condition and neither created nor had actual or constructive notice of the allegedly dangerous condition.” In this case, the store manager testified that it had not received any complaints about the store or the condition of the floor in the area where the plaintiff fell. However, he did testify that merchandise is commonly knocked to the floor by customers and that employees are required to regularly check the floors and pick up any merchandise. There was testimony that the floor was checked by an employee within an hour of when the accident occurred.

The plaintiff did not argue that defendant had actual notice of the purse on the floor and did not attempt to show how long the purse had been on the floor. Instead, the plaintiff asserted the store had constructive notice because merchandise on the floor was an “ongoing and recurring dangerous condition in the area of the accident” that the owner was aware of and yet did nothing to rectify the problem. Based on the store manager’s testimony that he knew merchandise often fell to the floor, and testimony by other patrons that the purse bins were always in disarray and purses were always on the floor, the court held that there was an issue of constructive notice that should be heard by the jury.

This decision did not decide that the store was liable, only that the plaintiff’s case should not have been dismissed and that the jury should get to decide whether the store is liable. Premises liability plaintiffs often try to prove liability by showing how long the dangerous condition was left uncorrected. This case shows another way store owners may be liable, when they are aware of an “ongoing and recurring dangerous condition” but do not correct it. If you need advice or representation in a New York City premises liability case, contact Leandros A. Vrionedes, P.C. for a free consultation.

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