Wade Clark Mulcahy LLP

In New York, landowners and business owners have a duty to maintain their properties in a reasonably safe condition. In seeking summary judgment in a premises liability case, they have the initial burden of establishing that they did not create or have actual or constructive notice of a dangerous condition on the premises.

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/10/Andrews-v.-JCP-Groceries-Inc..pdf">Andrews v. JCP Groceries, Inc.</a>,</em> the Appellate Division, Fourth Department addressed these issues in a case in which plaintiff was injured after slipping on a wet supermarket floor. Defendant moved for summary judgment on the issue of notice and the trial court granted the motion.

The Fourth Department initially found that the defendant met its initial burden of establishing that it did not have actual notice of any dangerous condition by submitting evidence that it did not receive any complaints concerning the area where plaintiff fell and was unaware of any water in that location prior to the accident. The court also found that defendant met its initial burden of establishing that it did not create the dangerous condition.

However, the court also found that the Supreme Court erred in granting the motion with respect to the claim that defendant had constructive notice of the condition. In so holding, the court found that issues of fact existed as to whether the wet floor "was visible and apparent and existed for a sufficient length of time prior to plaintiff's fall to permit [defendant's employees] to discover and remedy it.” The court added that: “Although defendant submitted the affidavit and deposition testimony of its former store manager, in which he indicated that store employees routinely frequented the area and would have looked for dangerous conditions, defendant's evidence failed to establish that the employees actually performed any security sweeps on the day of the incident, or that anyone actually inspected the area in question before plaintiff's fall. Consequently, defendant failed to eliminate all issues of fact with respect to constructive notice.” Accordingly, the court modified the summary judgment order and reinstated the complaint.

The <em>Andrews</em> decision serves as a reminder that when alleging lack of constructive notice, a premises liability defendant must proffer specific evidence of security/safety sweeps on the day of a plaintiff’s alleged accident and in the specific location of the alleged accident. The Appellate Division has made it clear that evidence of “routine” security sweeps alone will not be sufficient to establish lack of constructive notice.

Thank you to Corey Morgenstern for his contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.