Summary
The Appellate Division, First Department reversed an order granting Whole Foods summary judgment in a premises-liability action involving a slip and fall in a customer bathroom. The court held that defendants failed to establish prima facie that they lacked constructive notice of the hazardous condition because their witness could not authenticate the inspection logs and the logs showed no inspection for nearly two hours before closing.
Topics
Practice areas
Questions Presented
- Whether defendants established prima facie entitlement to summary judgment by demonstrating that they lacked constructive notice of the dangerous condition.
- Whether plaintiff's failure to see the clear liquid before falling conclusively established that defendants lacked notice.
- Whether the appellate court should consider arguments concerning whether defendants created the condition or had actual notice when those arguments were abandoned or raised for the first time on appeal.
Holdings
- Defendants failed to satisfy their prima facie burden of establishing that they did not have constructive notice of the dangerous condition, so summary judgment was improper.
- Plaintiff's failure to notice the clear liquid before falling did not conclusively establish that defendants lacked notice.
- Because defendants failed to establish prima facie entitlement to summary judgment, the court did not need to consider the sufficiency of plaintiff's opposition papers.
- The court declined to consider the parties' arguments concerning whether defendants created the condition or had actual notice because plaintiff abandoned those arguments or they were raised for the first time on appeal.
Key quotations
“Defendants failed to satisfy their prima facie burden of establishing that they did not have constructive notice of the allegedly dangerous condition that caused plaintiff to slip and fall.” ([*1])
“Because defendants failed to establish prima facie entitlement to summary judgment, we need not consider the sufficiency of the opposition papers” ([*1])
Factual background
On March 12, 2018, at approximately 10:30 p.m., Shanta Green slipped and fell on a clear liquid substance in a customer bathroom at a Whole Foods store. After the fall, her pants and hands were wet. She testified and submitted photographs indicating that the bathroom was not clean, including an overflowing trash can and tissue on the floor. Defendants relied on a store supervisor's testimony and inspection logs to show that the bathroom was inspected and cleaned, but the evidence indicated no inspection between 9:12 p.m. and the store's 11 p.m. closing.
Procedural history
Supreme Court, New York County, granted defendants' motion for summary judgment dismissing the complaint. The Appellate Division, First Department, unanimously reversed on the law and denied the motion.
Remand instructions
The order granting defendants' motion for summary judgment was reversed and the motion was denied. No further specific remand instructions were stated.