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Tick Tock On The Clock - No Constructive Notice In NJ

November 11, 2021

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<p style="text-align: justify;">The Appellate Division recently ruled that where liquid was on the lobby floor for one minute and twenty-three seconds and no employee was in close enough proximity to the site of the spill, no jury could possibly find constructive notice and therefore summary judgment is appropriate. <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/11/McKiski.pdf">McKiski</a> v. Harrah’s Atlantic City Operating Company, LLC</em> 2021 WL 4428924 at *3 (2021).</p>
<p style="text-align: justify;">In <em>McKiski</em>, plaintiff’s slip and fall and the moments that preceded it were all captured on video footage in the lobby of Harrah’s in Atlantic City. The footage showed a group of patrons carrying pillows, sleeping bags, and other items when one member of the group dropped a bag containing a bottle of liquor. This broke the bottle and caused the spill leading to plaintiff’s fall. The group tried to clean up the spill, but after one minute and three seconds, the group left. Twenty seconds later, plaintiff walked by the area and fell to the floor. Footage did not show any Harrah’s employees until they arrived to help plaintiff after her fall.</p>
<p style="text-align: justify;">Plaintiff alleged that there were two security guards assigned locations ten to twelve feet from the spill, and a bell captain’s station was twenty feet from the spill. Plaintiff claimed that from this evidence, employees should have heard the liquor bottle break. Plaintiff admitted at oral argument that Harrah’s did not have actual notice.</p>
<p style="text-align: justify;">The Appellate Division rejected plaintiff’s arguments on constructive notice. The Appellate Division stated, “plaintiff’s suggestion that Harrah’s employees should have heard or noticed the spill in time to prevent [plaintiff’s] fall is based solely on speculation relating to the position of those employees at the time of the spill and the audio conditions in the busy lobby.” The court also ruled plaintiff’s expert report, which opined that the employees should have heard the breaking liquor bottle, was inadmissible because it was not predicated on accepted industry standard or practices regarding the maintenance of hotel properties. Therefore, the Appellate Division held there was no genuine issue of material fact as to constructive notice and summary judgment was appropriate.  We anticipate this case being relied upon by defendants going forward in actions when a hazardous condition only existed for a brief period of time.</p>
Thanks to Brendan Gilmartin for his contribution to this post. Please contact <a href="mailto:Haquino@wcmlaw.com">Heather Aquino</a> with any questions.

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