Bad Weather Is Insufficient To Establish Actual Or Constructive Notice (NY)
On January 3, 2019, Plaintiff slipped and fell while shopping at Defendant Von Muar’s retail store located in Eastview, New York. Approximately four months later, Plaintiff filed suit alleging that she was injured due to Defendant’s negligence in causing, creating, or permitting a dangerous condition within its premises. After discovery was completed, Defendant filed a motion for summary judgment on the basis that no evidence was presented that supported the Defendant created or had actual or constructive notice of a hazardous condition that it failed to correct.
The U.S. District Court for the Western District of New York granted the Defendant’s motion and dismissed the Plaintiff’s complaint. In his opinion, the Honorable Frank Geraci concluded no evidence was raised during discovery supported a finding that Defendant created a wet spot in the store nor did Defendant have actual or constructive notice of the allegedly dangerous condition.
In this case, the Plaintiff did not see any wet spot before falling and concluded a wet spot on the floor only because she observed her clothes were wet after the fall. However, the defense argued no evidence established that a wet spot on the floor was visible or even present before Plaintiff’s fall. Furthermore, there was no evidence an employee of Defendant created the hazard or knew of the wet floor, nor that another customer complained about a wet spot in the area before Plaintiff fell.
The retail store had wet floor signs placed in five areas throughout the store, with carpets and runners placed at the entrance, which was common practice between October and April due to possible inclement weather, regardless of the specific day. As such, Judge Geraci noted Plaintiff’s theory that the wet floor signs, along with Defendant’s acknowledgment that their cleaning procedures did not make the floor wet, demonstrate a more general awareness by Defendant that floors may become wet due to the weather conditions existing on a given day. But this is not sufficient to establish that Defendant had actual notice of the alleged wet spot.
Thanks to Irving Fayman for his contribution to this post. Should you have any question, please contact ">Thomas Bracken.