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Good Maintenance Practices And Record Keeping Can Help Avoid Liability In A New York Slip And Fall Case (NY)

November 4, 2021

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<p style="text-align: justify;">The First Department’s decision in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/11/Velocci-v.-Stop-Shop.pdf">Velocci v. Stop &amp; Shop</a>,</em> 188 A.D. 3d 436 [1st Dept. 2020], provides a notable reminder of the importance of inspection and maintenance efforts to prevent liability for slip and fall accidents. In that case, plaintiff fell on a puddle of water on the floor in front of an ice machine in a supermarket. He and his wife had shopped there frequently and had never used the ice machine or saw or complained of water in the area prior to the fall. He also did not see the puddle until after he fell and did not know where the water came from.</p>
<p style="text-align: justify;">Defendant Christopher Luisi had seen drops of water on the floor in front of the ice machine on one occasion but could not remember whether there had been any prior accidents. According to the supermarket’s records, a porter had inspected the area where plaintiff fell shortly before the accident.</p>
<p style="text-align: justify;">Defendants moved for summary judgment, arguing that they had no actual or constructive notice of the condition because the water was not visible and not there long enough for employees to clean it before the fall. Defendants submitted an affidavit from the porter who noted that she inspected the area 30 minutes before the accident and did not see water on the floor.</p>
<p style="text-align: justify;">Plaintiff opposed the motion with affidavits from he and his wife claiming that they have never seen mats or carpets on the floor in front of the freezer and would notice water accumulate after bags of ice were left on the floor. Plaintiff also submitted expert affidavits which claimed that defendants failed to address a long-term water issue from the replenishment of ice and that it was custom and practice in the industry to place rubber cones and an absorbent mat on the floor in front of such machines because water accumulates when bags of ice are placed on the floor.</p>
<p style="text-align: justify;">The Supreme Court granted defendants motion for summary and the First Department affirmed, finding that the trial court correctly found that the defendants did not have actual or constructive notice of the condition under the circumstances. Plaintiff’s testimony confirmed that the water on the floor was not visible or apparent prior to his fall, and any statements that the employees or customers created the condition were speculative, at best. The court found that the water was not there for enough time to give defendants an opportunity to discover and remedy it, and that supermarket’s log showed that the area was inspected consistently and had been inspected only a half hour prior to plaintiff’s fall. The courts further found that the expert affidavits submitted by plaintiff did not create triable issues of fact since there was no evidence that similar falls had occurred.</p>
<p style="text-align: justify;">The takeaway from <em>Velocci </em>is that frequent inspections/maintenance and good record keeping can help a New York business prevent liability for slip and fall accidents.</p>
<p style="text-align: justify;">Thank you to Tristan Montaque for his contribution to this post.  Please e-mail <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>

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