Opinion
14204/08.
Decided November 29, 2010.
The following papers have been read on this motion:
Papers Numbered Notice of Motion, Affirmation, Affidavit and Exhibits 1 Affirmation in Opposition and Exhibits 2 Reply Affirmation and Exhibits 3
Upon the foregoing papers, it is ordered that the motions are decided as follows:
Defendants move, pursuant to CPLR § 3212, for an order granting summary judgment and dismissing plaintiff's complaint on the grounds that plaintiff has failed to establish a prima facie case of negligence. Plaintiffs oppose defendants' motion.
This personal injury action arises out of a trip and fall accident that occurred at the Waldbaums supermarket located at 1050 Willis Avenue, Albertson, New York. It is alleged that on April 30, 2007, at approximately 9:15 p.m., while a customer in the aforementioned store, plaintiff Beth Richardson, while in the aisle in front of the fresh vegetable and herbs, was caused to slip, trip and fall by reason of the vegetable misting machine spraying mist/water onto the aisles and beyond the perimeters of the mat/carpet, thereby wetting the floors and causing plaintiff Beth Richards to slip into the bunched up carpet/mat, thereby sustaining injuries. Summons and Verified Complaint were served on or about July 17, 2008. Issue was joined on or about September 10, 2008.
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 (1957); Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1986); Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); Bhatti v. Roche, 140 AD2d 660, 528 NYS2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 NY2d 1092, 489 NYS2d 884 (1985).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980), supra . When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 (1957), supra . Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. S ee Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 525 NYS2d 793 (1988).
Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 NY2d 247, 428 NYS2d 665 (1980); Daliendo v. Johnson, 147 AD2d 312, 543 NYS2d 987 (2d Dept. 1989).
Defendants submit that they are entitled to summary judgment as they claim that based upon the sworn testimony of the parties, together with the affidavit of David Denton and the plaintiffs' pleadings, plaintiffs cannot establish that the defendants created the alleged condition or that the defendants had actual or constructive notice of same. Defendants state plaintiff Beth Richards testified at her Examination Before Trial ("EBT") that she walked in the produce aisle for approximately fifteen minutes prior to her fall and had walked past the exact area where her fall would eventually occur. As plaintiff Beth Richards walked through the produce department, she remembered that she had forgotten something and walked back to the area of the snap peas. Plaintiff Beth Richards testified that she did not recall seeing the alleged bunched up mat when she had walked past it earlier. Plaintiff Beth Richards allegedly walked onto the mat located in front of the snap peas, reached with her right hand and grabbed a bunch of snap peas. She then turned around and her foot "got stuck." Plaintiff Beth Richards testified that the cause of her fall was "the mat and the wetness in the area" and that the alleged wetness emanated from the vegetable misters located in the produce aisle.
Defendants assert that plaintiffs never made any complaints to anyone about the mister or the mat prior to plaintiff Beth Richards' accident. Defendants further assert that David Denton, the Assistant Store Manager at the subject Waldbaums supermarket, was in the subject area five minutes before plaintiff Beth Richards fell and, at that time, he observed the subject mat to be flat, clean and dry. Mr. Denton additionally states that the misters were not turned on and that he did not observe any water on the subject mat or anywhere within the produce aisle. See Defendants' Affirmation in Support Exhibit J. When Mr. Denton appeared for his EBT, he testified that, prior to plaintiff Beth Richards' accident on April 30, 2007, he was not aware of any complaints regarding mats buckling, folding or any other defects in the mat, as well as any problems from the subject vegetable misters which may have resulted in water on the floor. See Defendants' Affirmation in Support Exhibit I. Defendants add that Steve Priczak, the produce manager at the subject Waldbaums supermarket, testified at his EBT with regard to his general procedures as the head of the produce department. See Defendants' Affirmation in Support Exhibit L. According to Mr. Priczak, the mats that are located near the vegetable misters do not get wet. Further, he had not seen these mats become bunched. He also testified that no one had ever reported a buckle in a mat to him.
Defendants contend that plaintiffs' Second Supplemental Bill of Particulars, served on April of 2010, six months after plaintiffs' depositions, alleges that the alleged mat condition ( i.e. bunching) is a recurring condition. Defendants note that plaintiff Beth Richards testified that she had never made any complaints regarding the mat prior to her accident and that she did not see the mat bunched up prior to her fall and only assumed that it was a "bunch" that caused her fall.
Defendants argue that in order for plaintiffs to make a prima facie case of negligence, they must establish the existence of a dangerous or defective condition in the first instance. Pillato v. Diamond, 209 AD2d 393, 618 NYS2d 446 (2d Dept. 1994). To impose liability on a defendant in a trip and fall accident, there must be evidence that the defendant either created the condition or had actual or constructive notice of same. Hayden v. Waldbaum, Inc. , 63 AD3d 679 , 880 NYS2d 351 (2d Dept. 2009). To impose liability, plaintiffs must establish that a dangerous or defective condition existed in the mat. If there is no indication in the records that a defendant created the alleged dangerous condition, or had actual notice of it, the plaintiff must then proceed under a theory of constructive notice. To constitute constructive notice, a defect must be visible and apparent and must exist for a sufficient length of time prior to the accident in order to permit the defendant's employees an opportunity to discover and remedy it. Rabadi v. Atlantic Pacific Tea Company Inc., 268 AD2d 418, 702 NYS2d 316 (2d Dept. 2000). Defendants submit that plaintiffs have not offered any evidence that establishes that the subject mat was dangerous or defective on April 30, 2007, but rather the evidence is to the contrary based upon the testimony of both Mr. Denton and Mr. Priczak. Defendants state that plaintiff Beth Richards testified that she was caused to fall due to a combination of a wet floor and a bunch in the mat, but she admitted that she did not see any water on the floor or the actual mat before her fall nor did she see a buckle or defect before her fall. Additionally, she made no prior complaints about the mat or about the vegetable mister before April 30, 2007.
Defendants contend that "it is just as likely that Ms. Richard's ( sic) caused the mat to buckle as a result of her fall, rather than the existence of a pre-existing condition." See Rubin v. Cryder House 39 AD3d 840 , 834 NYS2d 316 (2d Dept. 2007).
Defendants also contend that there is no evidence that they had notice of either the buckled mat or wetness on the mat. Defendants rely on the affidavit of Mr. Denton in which he stated that he conducted an inspection of the area five minutes before plaintiff Beth Richards fell and he observed the mat to be flat, clean and he did not observe the misters turned on or any wetness on the floor. See Defendants' Affirmation in Support Exhibit J. Thus, defendants submit, there exists no evidence that the alleged condition existed for any appreciable time to give it constructive notice, but rather the evidence supports the opposite conclusion that five minutes prior the area was in good condition.
With respect to plaintiffs' claim that the mat is a recurring condition, defendants argue that the recurring argument is inapplicable to the case at hand because there was no actual notice as both Mr. Denton and Mr. Priczak testified that they knew of no prior complaints of this mat bunching prior to plaintiff Beth Richards' fall nor any prior complaints of bunching mats in the produce department. Defendants state that it is just as likely that plaintiff Beth Richards caused the mat to buckle as a result of her fall rather than the existence of a pre-existing condition and that there can be no recurring condition when plaintiff Beth Richards does not know what condition actually caused her fall. Defendants also argue that plaintiffs have not offered any evidence that establishes that the subject mat was dangerous or defective on the date of incident.
In opposition to defendants' motion, plaintiffs assert that the mat in question had become bunched up prior to plaintiff Beth Richards traversing said mat. Plaintiffs argue that defendants utilized light weight mats that did not adhere to the floor surface, that were not equipped with any skid resistant material or backing and which moved, shifted and became bunched up and created obstruction and tripping hazards, a recurring dangerous condition. In support of this argument, plaintiffs offer the affidavit of their expert witness, Richard G. Berkenfeld, a licensed professional engineer in the State of New York. See Plaintiffs' Affirmation in Opposition Exhibit K. Plaintiffs submit that defendants created a safety hazard, a obstruction and tripping hazard within the subject supermarket and that the bunching of the mat and associated tripping hazard was a recurrent condition to which defendants had actual and constructive notice. Defendants had adequate time to remedy the bunching up of the mats and failed to fulfill their duty to protect the safety, health and well-being of their customers. Plaintiffs state that defendants violated safety standards applicable to floors, mats and runners and created the recurring dangerous condition. Defendants used light weight mats that were not slip-resistant where it was known that customers would traverse the mats and push shopping wagons across said mats, thereby creating a recurring slipping, shifting, bunching up and tripping hazard.
Plaintiffs also contend that "defendants' motion papers fail to eliminate triable fact issues. The attorney's affirmation, and the tailored affidavit of David Denton, do not establish defendants' prima facie entitlement to summary judgment. While Mr. Denton's affidavit parrots the language that is often found in decisions that hold that a defendant inspected the accident location shortly prior to the occurrence of an accident, the affidavit clearly contradicts Mr. Denton's deposition testimony. The well-settled axiom, followed by the Courts of this jurisdiction, is that parties cannot use tailored affidavits, in summary judgment motions, to overcome the consequences of their earlier deposition testimony." Plaintiffs submit that Mr. Denton testified that his function was to oversee the other employees, not to perform the inspection and amelioration of dangerous conditions himself, and that the person who worked in the produce department was responsible to make sure that there were safe conditions in that area. Plaintiffs argue that Mr. Denton had not inspected the accident location intermittently within the short period of time prior to the occurrence.
Plaintiffs contend that defendants' surveillance video and still shots, plaintiffs' affidavits, photographs, expert witness affidavit and photographic evidence, and the two annexed accident reports and the parties' EBT transcripts all establish triable issues of fact regarding defendants' creation of the dangerous recurring condition in question and its actual and constructive notice thereof.
Plaintiffs submit that the absence of prior complaints does not negate any and all possibility of premises liability. Plaintiffs state that Mr. Priczak, the subject Waldbaums' produce manager, testified that he had seen bunched up mats prior to the date of this occurrence and that it was the responsibility of employees to straighten these mats.
In seeking summary judgment dismissing the complaint, the defendant has the initial burden of establishing that it did not create the alleged dangerous condition and did not have actual or construction notice of it. See Pelow v. Tri-Main Development, 303 AD2d 940, 757 NYS2d 653 (4th Dept. 2003).
Of course, a defendant must have either actual or constructive notice of the hazardous condition that caused the plaintiff to slip and/or fall. See Piacquadio v. Recine Realty Corp., 84 NY2d 967, 662 NYS2d 493 (1994); Gordon v. American Museum of National History, 67 NY2d 836, 501 NYS2d 646 (1986).
To be entitled to summary judgment in a premise liability action, the property owner/lessor is required to establish that it maintained its premises in a reasonable safe manner, and that it did not create a dangerous condition which posed a foreseeable risk of injury to individuals expected to be present on the property. See Westbrook v. WR Activities-Cabrera Markets , 5 AD3d 69 , 773 NYS2d 38 (1st Dept. 2004).
In a premises liability action, the plaintiff may satisfy the burden of showing that the property owner was on notice of the dangerous condition that allegedly resulted in the plaintiff's injury by producing evidence that an ongoing dangerous condition existed in the area of the incident, which condition was left unaddressed by the property owner. See Talavera v. New York City Transit Authority, 41 AD3d 135, 836 NYS2d 610 (1st Dept. 2007).
Where the plaintiff proceeds on the theory of construction notice, the plaintiff must ultimately prove at trial that the defect which caused the accident was visible and apparent, and that it existed for a sufficient length of time prior to the accident to permit the defendant (or its employees) to discover and remedy it. See Gordon v. American Museum of Natural History, supra; Daniely v. County of Westchester, 297 AD2d 654, 747 NYS2d 239 (2d Dept. 2002), lv to app den. 100 NY2d 501, 760 NYS2d 764 (2003).
A plaintiff must demonstrate that a defendant's negligence was a substantial cause of incident. See Howard v. Poseidon Pools, Inc. 72 NY2d 972, 534 NYS2d 360 (1988).
For a defendant owner to prevail or a summary judgment motion regarding a slip and fall action, the owner is required to establish as a matter of law that the owner maintained the property in question in a reasonably safe condition, and that it neither created the alleged dangerous condition existing nor had actual or constructive notice thereof. See Mokszki v. Pratt , 13 AD3d 709 , 786 NYS2d 222 (3d Dept. 2004).
The question of whether a condition upon the premises under control of a defendant is sufficiently hazardous to create "liability" is generally a question to be resolved by a jury on the facts particular to the case. See Argenio v. Metropolitan Transp. Auth., 277 AD2d 165, 716 NYS2d 657 (1st Dept. 2000). Also, a negligent failure to discover a condition that should have been discovered can be no less of a breach of due care than a failure to respond to the actual notice of such a condition. See Blake v. City of Albany, 48 NY2d 875, 424 NYS2d 358 (1979).
Based upon the evidence and legal argument presented to the Court in its motion, the Court finds that defendant has established, prima facie, that it neither created or had actual or constructive notice of the condition alleged to have caused plaintiff's fall.
As previously stated, if a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, supra .
While plaintiffs' ultimate burden at trial is to prove that the defendants' conduct was the proximate cause of plaintiff Beth Richards' injuries ( see Barker v. Parmossa, 39 NY2d 926, 386 NYS2d 576 (1976)), here plaintiffs are required, in opposing defendants' summary judgment motion to raise issues of fact that defendants created the alleged dangerous condition. Here, the plaintiffs have met their burden.
It is the existence of an issue, not its relative strength that is the critical and controlling consideration in the determination of a summary judgment motion. See Barrett v. Jacobs, 255 NY 520 (1931); Cross v. Cross, 112 AD2d 62, 491 NYS2d 353 (1st Dept. 1985). The evidence should be construed in a light most favorable to the party moved against. See Weiss v. Garfield, 21 AD2d 156, 249 NYS2d 458 (3d Dept. 1964). Summary judgment is seldom appropriate in negligence cases. See Vandewater v. Sears, 277 AD2d 1056, 716 NYS2d 495 (4th Dept. 2000); Connell v. Buitekant, 17 AD2d 944, 234 NYS2d 336 (1st Dept. 1962).
Based upon the above, the Court concludes that the evidence provided by plaintiffs clearly raises genuine issues of fact as to the liability of defendants with respect to the injuries sustained by plaintiff Beth Richards as a result of the April 30, 2007 accident. Consequently, defendant's motion for summary judgment is hereby denied.
All parties shall appear for Trial in Nassau County Supreme Court, DCM Trial Part on December 20, 2010 at 9:30 a.m.
This constitutes the Decision and Order of this Court.