Summary
This Appellate Division, Fourth Department slip opinion addresses a plaintiff's appeal from an order granting defendants' motion for summary judgment in a premises liability action arising from a slip-and-fall on black ice. The court held that the mere presence of black ice does not automatically preclude a finding of constructive notice, as icy conditions can still be visible and apparent. Reversing in part, the court found that the defendants failed to establish as a matter of law that the condition was not visible, and the plaintiff raised a triable issue of fact regarding whether the store had sufficient time to discover and remedy the hazard.
Topics
Practice areas
Questions Presented
- Did defendants have constructive notice of the icy condition for purposes of summary judgment?
- Was the icy condition visible and apparent as required for constructive notice?
Holdings
- Defendants failed to meet their burden of showing the icy condition was not visible and apparent; therefore summary judgment on the constructive notice claim was denied and the complaint was reinstated as to that claim.
Key quotations
“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant's employees to discover and remedy it (Gordon v. American Museum of Natural History, 67 NY2d 836, 837 (1986)).” (at 1)
“That fact alone does not establish as a matter of law that the ice was not visible and apparent (Cottrell v. Benderson Dev. Co., LLC, 186 AD3d 1065, 1066 (4th Dep't 2020)).” (at 1)
Factual background
Plaintiff slipped on black ice in a grocery store parking lot and alleges defendants created the dangerous condition and had actual and constructive notice of it.
Procedural history
Supreme Court, Erie County granted defendants' motion for summary judgment dismissing the complaint; plaintiff appealed focusing on constructive notice issue