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Saved By the Video - Notice Take Two (NY)

July 7, 2016

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The issue of notice can be an effective defense in a premises liability action.  However, it is the defendant's burden to establish that it neither created the alleged hazardous condition nor had notice in sufficient time to take action.  In <a href="">Parietti v Wal-Mart Stores, Inc. </a>the sufficiency of those proofs was questioned.
Plaintiff Dolores Parietti was allegedly injured when she slipped and fell on a wet spot near an ice machine inside a store operated by defendant Wal-Mart. In the lower court, defendant Wal-Mart moved for summary judgment, arguing that while water may have been present on the floor when the plaintiff fell, Wal-Mart was never advised of a wet condition on the floor before the accident, nor did the wet condition exist for a sufficient length of time prior to the accident such that Wal-Mart’s employees were able to discover and remedy it. Accordingly, Wal-Mart did not have actual or constructive notice of the condition. The motion court was unswayed by Wal-Mart's arguments and denied the motion.
On appeal, the Second Department was more persuaded and found that Wal-Mart did establish its <em>prima facie</em> entitlement to judgment as a matter of law. Wal-Mart submitted  evidence that that it was not advised of the wet condition on the floor and  did not receive any written or oral complaints by customers or employees concerning water on the floor or a leak in the ice machine prior to the accident.  But perhaps, most significantly, it offered video surveillance recordings that effectively demonstrated, at least to the appellate court's satisfaction, that its employees, as per protocol, monitored the conditions at the front entrance of the store in the area where the injured plaintiff fell only minutes before her accident, and no wet condition was observed.
The Court noted that “mere reference to general cleaning practices . . . is insufficient to establish a lack of constructive notice" in the absence of evidence regarding specific cleaning or inspection of the area in question. However, since Wal-Mart’s evidence was found sufficient, the lower court’s decision was reversed and Wal-Mart’s motion for summary judgment was granted, dismissing the complaint against it.
Thanks to Lauren Tarangelo for her contribution.
For more information, contact Denise Fontana Ricci at <a href=""></a>.


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