| Black v Kohl's Dept. Stores, Inc. |
| 2011 NY Slip Op 00139 [80 AD3d 958] |
| January 13, 2011 |
| Appellate Division, Third Department |
| Mary Black, Appellant, v Kohl's Department Stores, Inc.,Respondent. |
—[*1] Goldberg Segalla, L.L.P., Albany (Jonathan M. Bernstein of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Egan Jr., J.), entered January 28,2010 in Albany County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff commenced this personal injury action after tripping and falling in defendant's store.Plaintiff claimed that she caught her foot on a purse that was lying on an aisle floor. Followingjoinder of issue, defendant moved for summary judgment dismissing the complaint. SupremeCourt granted the motion, prompting this appeal.
When considering a motion for summary judgment, courts must view the evidence in a lightmost favorable to the nonmoving party and accord that party the benefit of every reasonableinference from the record proof, without making any credibility determinations (see Gadani v Dormitory Auth. of State ofN.Y., 43 AD3d 1218, 1219 [2007]; Tenkate v Tops Mkts., LLC, 38 AD3d 987, 989 [2007]). Courtsmust focus on issue finding rather than issue determination, and deny the drastic remedy ofsummary judgment if there is any doubt as to whether a material factual issue exists or if such anissue is even arguable (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395,404 [1957]; Boston v Dunham, 274 AD2d 708, 709 [2000]). Because plaintiff raised atriable issue of fact concerning defendant's constructive notice of the dangerous condition in itsstore, defendant's motion for summary judgment should have been denied.[*2]
In moving for summary judgment, defendant bore "theinitial burden of establishing that it 'maintained the premises in a reasonably safe condition andneither created nor had actual or constructive notice of the allegedly dangerous condition' " (Cietek v Bountiful Bread of StuyvesantPlaza, Inc., 74 AD3d 1628, 1629 [2010], quoting Candelario v Watervliet Hous. Auth., 46 AD3d 1073, 1074 [2007];see Cerkowski v Price ChopperOperating Co., Inc., 68 AD3d 1382, 1383 [2009]).[FN1]Defendant presented the testimony of Steven Heller, its store manager, that defendant receivedno complaints about its store or the condition of the floor in the area where plaintiff fell prior tothe accident. He also indicated that purses are not displayed on the floor, but in standing displaycases with shelves. Heller acknowledged that he had seen merchandise—includinghandbags—on the floor in the store and that, in retail generally, it was common thatcustomers would knock merchandise to the floor. As a result, he testified, store employees wererequired to pick up any merchandise that fell to the floor and to make a sweep of the floors at theend of their shifts to ensure that the floors were clear of merchandise. Heller also stated that hearrived on the scene shortly after plaintiff's accident and did not observe any handbags on thefloor. In addition, defendant presented an affidavit from Kimberly Camp, who worked in theaccessories department where plaintiff fell, averring that she inspected the floor at 3:00 p.m. andthat there was no merchandise on the floor at that time. Plaintiff alleged that the accidentoccurred between 3:15 p.m. and 4:00 p.m. and an accident report indicates that emergencymedical services received a call regarding plaintiff's injury at 3:48 p.m. This evidence wassufficient to meet defendant's initial burden, thereby shifting the burden to plaintiff to profferevidence creating a triable issue of fact (see Cietek v Bountiful Bread of Stuyvesant Plaza,Inc., 74 AD3d at 1629; Cochetti vWal-Mart Stores, Inc., 24 AD3d 852, 853 [2005]; Walker v Golub Corp., 276AD2d 955, 956 [2000]).
Plaintiff makes no argument that defendant had actual notice and produced no evidenceregarding the length of time that the purse that caused her to trip had been on the floor (seeMueller v Hannaford Bros. Co., 276 AD2d 819, 819-820 [2000]; cf. Negri v Stop &Shop, 65 NY2d 625, 626 [1985]). However, constructive notice can also be established byevidence that the property owner was aware of an ongoing and recurring dangerous condition inthe area of the accident and did not rectify the problem (see Bush v Mechanicville Warehouse Corp., 69 AD3d 1207,1208-1209 [2010]; Mazerbo vMurphy, 52 AD3d 1064, 1066 [2008], appeal dismissed 11 NY3d 770 [2008];Bray v McGillicuddy's Tap House,Ltd., 41 AD3d 1069, 1070-1071 [2007]; Talavera v New York City Tr. Auth., 41 AD3d 135, 136 [2007]).Here, Heller acknowledged that he had seen merchandise, including handbags, on the floor in thestore and that customers would commonly knock merchandise onto the floor. Camp averred thatplaintiff's accident occurred in an aisle near a price checker and that customers wouldoccasionally leave clothing hanging near the price checker or on shelves nearby, causingemployees to more frequently [*3]attend to that aisle and themerchandise misplaced therein.[FN2]
Two nonparty customers who frequented defendant's store approximately once per week forseveral years provided affidavits on plaintiff's behalf. One of those customers averred that sheregularly visited the department where plaintiff fell, that "it is obvious that customers placepurses on the ground without replacing them while rummaging through the sales bins," the pursedepartment is in "continual disarray" and purses are often on the floor rather than in a display,"having either fallen or been placed there haphazardly by a shopper or a child." The othercustomer similarly related that, regardless of the time of her visits, the purse department alwaysappeared like it had not been cleaned in a while and that "there was always an assortment ofpurses laying on the floor," making it difficult to navigate the narrow aisle (compare Rosati v Kohl's Dept. Stores,1 AD3d 674, 675 [2003], with Cochetti v Wal-Mart Stores, Inc., 24 AD3d at 853).This evidence, when considered in a light most favorable to plaintiff, was sufficient to meet herburden of raising a factual question concerning whether the recurring nature of the situation putdefendant on constructive notice that a dangerous condition existed in its store (see Hagin v Sears, Roebuck & Co., 61AD3d 1264, 1265-1266 [2009]; Bray v McGillicuddy's Tap House, Ltd., 41 AD3d at1070-1071; Rosati v Kohl's Dept. Stores, 1 AD3d at 675).[FN3]Based upon this material question of fact, summary judgment is inappropriate and defendant'smotion should have been denied.
Peters, Malone Jr. and Stein, JJ., concur.
Mercure, J.P. (dissenting). I respectfully dissent. The majority adopts a rule that evidence ofmerchandise dropped frequently on the floor of a department store by customers—acommon condition that cannot be prevented in advance—may establish constructive noticeof a dangerous condition despite proof that the aisle in which the plaintiff fell was inspectedshortly before the incident. In my view, such evidence is insufficient—as a matter oflaw—to create a question of fact on the issue of whether the recurring nature of thesituation may be deemed to have put defendant on constructive notice of each specificreoccurrence of the condition. Moreover, a rule that such evidence can obviate the need for ashowing of constructive notice essentially renders department stores guarantors of customersafety with respect to hazards created by other patrons. The duty imposed upon property owners,however, is not one of "strict liability but rather requires that the landowner act reasonably whenconsidering all the circumstances" (Peralta v Henriquez, 100 NY2d 139, 144 [2003]).Inasmuch as the evidence submitted by plaintiff is insufficient to overcome defendant's primafacie showing of entitlement to summary judgment, I would hold that Supreme Court properlygranted defendant's motion for summary judgment dismissing the complaint. Indeed, "[h]oldingotherwise . . . creates a precedent that expands the 'recurring unsafe condition' rulebeyond manageable bounds" (Mazerbo vMurphy, 52 AD3d 1064, 1070 [2008, Rose, J., dissenting], appeal dismissed 11NY3d 770 [2008]).
Specifically herein, the majority errs in concluding that the affidavits from the nonpartycustomers of defendant stating that the purse department was frequently in disarray create aquestion of fact. A plaintiff may not overcome a showing of prima facie entitlement to summaryjudgment merely by providing evidence that a recurring hazardous condition existed. Rather,even under our most expansive prior interpretation of the recurring condition rule, constructivenotice of a recurrent dangerous condition will not be imputed absent a showing that the defendanthad actual knowledge of the "ongoing and recurring unsafe condition which regularlywent unaddressed" (id. at 1066 [emphasis added; internal quotation marks andcitations omitted]; see Migli v Davenport, 249 AD2d 932, 933 [1998]; Snyder vGolub Corp., 199 AD2d 776, 777 [1993], lv denied 83 NY2d 754 [1994]). Theaffidavits of the nonparty customers, however, do not constitute evidence of either requiredelement—i.e., that defendant unreasonably failed to address the condition or that it hadactual knowledge. First, plaintiff failed to counter defendant's showing that the aisle in which shefell was inspected as recently as 15 minutes before the accident and, at most, 48 minutesbeforehand (see Perry v CumberlandFarms, Inc., 68 AD3d 1409, 1410-1411 [2009], lv denied 14 NY3d 706 [2010];Cochetti v Wal-Mart Stores, Inc., 24AD3d 852, 853 [2005]; Mueller v Hannaford Bros. Co., 276 AD2d 819, 819 [2000];Walker v Golub Corp., 276 AD2d 955, 956 [2000]; cf. Hagin v Sears, Roebuck & Co., 61 AD3d 1264, 1266 [2009]; Rosati v Kohl's Dept. Stores, 1 AD3d674, 675 [2003]). Even viewing plaintiff's allegations of fact as true, as we must, imputingconstructive notice based upon a recurring condition would be unwarranted given this evidenceof remedial action addressing the allegedly unsafe condition just prior to the incident.
Furthermore, the affidavits of the nonparty customers are devoid of any evidence of the typethat this Court or the Court of Appeals has found sufficient to establish or give rise to aninference that defendant "had actual notice of a particular recurring safety issue that wasreasonably within [its] power to correct" (Chianese v Meier, 98 NY2d 270, 278 [2002]).The affidavits do not contain evidence that defendant had actual knowledge of anydangerous condition in its purse department (cf. Bush v Mechanicville Warehouse Corp., 69 AD3d 1207, 1208[2010]; Lowe v Spada, 282 AD2d 815, 815-817 [2001]). In addition, the majorityconcedes [*4]that defendant had received no prior complaintsabout its store or the purse department, and plaintiff presented no evidence contradictingdefendant's showing that there were no prior accidents in the area where she fell (cf. Chianesev Meier, 98 NY2d at 278; Mazerbo v Murphy, 52 AD3d at 1066-1067). Contrary tothe majority's view, the affidavit of defendant's employee averring that customers occasionallyleft clothing hanging at a nearby price checker is not relevant to the issue of defendant's actualnotice that purses on its floor—the particular dangerous condition that caused plaintiff'sfall—presented a recurring, hazardous condition (cf. Bray v McGillicuddy's Tap House, Ltd., 41 AD3d 1069,1070-1071 [2007]; Rosati v Kohl's Dept. Stores, 1 AD3d at 675). Under thesecircumstances, the conceded awareness of defendant's store manager that items, including purses,were regularly dropped on the floor of its store and other retail stores "shows only a generalawareness that a dangerous condition may be present" (Perry v Cumberland Farms, Inc.,68 AD3d at 1411).
Such evidence is therefore legally insufficient to either create a question of fact regardingconstructive notice or to obviate the need for a showing of notice, particularly given the absenceof any "proof disputing the evidence that the [purse] had been present for only a short time"(id. at 1411; see Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994];Cochetti v Wal-Mart Stores, Inc., 24 AD3d at 853; Gloria v MGM EmeraldEnters., 298 AD2d 355, 355-356 [2002]; Van Winkle v Price Chopper OperatingCo., 239 AD2d 692, 693 [1997]; Mercer v City of New York, 223 AD2d 688, 691[1996], affd 88 NY2d 955 [1996]). That is, "on the evidence presented, the [purse] thatcaused plaintiff's fall could have been deposited there only minutes or seconds before theaccident and any other conclusion would be pure speculation" (Gordon v American Museumof Natural History, 67 NY2d 836, 838 [1986]; accord Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837, 838-839[2005]; see Anderson v Klein's Foods, 73 NY2d 835 [1988], affg on op below139 AD2d 904, 905 [1988]).
Ordered that the order is reversed, on the law, with costs, and motion denied.
Footnote 1: Contrary to the dissent'sconcerns, we are not imposing strict liability upon landowners. Under well established rules oftort law, defendant must act reasonably to maintain its property in light of all the circumstancesand the class of potential plaintiffs consists of all members of the public invited into defendant'sstore (see Peralta v Henriquez, 100 NY2d 139, 144 [2003]; Basso v Miller, 40NY2d 233, 241 [1976]).
Footnote 2: The dissent complains that theaffidavits from defendant's employees do not "constitute evidence of" defendant's actualknowledge of a recurring dangerous condition. We agree that those affidavits do not conclusivelydemonstrate or establish anything. However, where, as here, a defendant has met its burden ofshowing its prima facie entitlement to summary judgment, a plaintiff's only obligation is to raisea question of fact regarding defendant's negligence. The affidavits of defendant's employees andthe nonparty customers constitute sufficient evidence to raise questions of fact regarding therecurring nature of the condition and defendant's knowledge of it.
Footnote 3: As the dissent correctly pointsout, the purse that allegedly caused plaintiff's fall was apparently lying on the floor for less thanan hour. While plaintiff may not have been able to establish constructive notice of that particularpurse creating a dangerous condition by being on the floor for that amount of time, the recordcontains sufficient evidence to create a triable question of fact regarding the existence of arecurring hazardous condition. Assuming a jury determines that a recurring hazardous conditionexisted, the length of time that the particular purse was on the floor is relevant to a separatetriable issue of fact, namely whether defendant adequately addressed that dangerous condition.