Summary
This Appellate Division, Third Department opinion addresses a cross-appeal regarding a partial denial of a defendant supermarket's motion for summary judgment in a premises liability action. The plaintiff alleged she slipped and fell on a cherry tomato in the produce section, but the court found the defendant established it lacked actual or constructive notice of the hazard and maintained the premises safely. Relying on deposition testimony showing recent inspections and no prior complaints, the appellate court reversed the lower court's ruling, granted summary judgment in its entirety, and dismissed the complaint.
Topics
Practice areas
Questions Presented
- Whether the defendant had constructive notice of the specific dangerous condition that caused the plaintiff’s fall
- Whether a general awareness of a dangerous condition creates constructive notice sufficient to defeat summary judgment
Holdings
- General awareness of a dangerous condition is insufficient to establish constructive notice of the particular condition that caused the injury; constructive notice requires actual knowledge of the specific condition.
- The defendant met its initial burden and therefore summary judgment was proper; the complaint is dismissed.
Key quotations
“Constructive notice requires a showing that the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit the defendant to discover it and take corrective action”
“A "general awareness of a dangerous condition cannot create an inference of constructive notice of the particular condition that caused the plaintiff's injury"”
Factual background
In 2020 Judith Levitt slipped on a cherry tomato on the floor of a Tops Markets store in Ithaca, sustaining injuries. The defendant testified that it inspected the floor 40 minutes before the fall and saw no produce, and that its safety policy required vigilance for dropped items. The plaintiff argued that the store had a recurring dangerous condition and that constructive notice existed.
Procedural history
The Supreme Court, Tompkins County, partially granted the defendant’s summary‑judgment motion, finding no actual or constructive notice but leaving open factual issues on the store’s safety. Both parties appealed: the defendant appealed the partial denial, and the plaintiff appealed the finding of no constructive notice.