State of New York
Supreme Court : County of Monroe

- against -

Index No. 1999/04131

ANDREW V. SIRACUSE, J.

A legal truism, like a little learning, is a dangerous thing. Defendants in this trip-and-fall case have moved for summary judgment, and at oral argument plaintiff's counsel claimed that he had no burden of proof to meet. In cases such as this one, however, the plaintiff is most often confronted with the need to offer affirmative proof even in a summary judgment motion. There may be questions of fact as to most of the elements of a cause of action, but if the court finds no proof supporting even one essential allegation needed for a prima facie case the defendant's motion must be granted. Such is the case here.

In cases against landowners or occupiers arising from an alleged dangerous condition the plaintiff is required to show not only the condition that proximately caused the accident, but an opportunity for the owner or occupier of the premises to remedy that condition. Tort liability is based on fault, after all, and the obligation imposed by tort law on owners and occupiers of land is to refrain from creating dangerous conditions, to remedy those which come to their attention, and to use reasonable care in apprising themselves of the condition of the premises. These three duties translate to three possible bases for liability: the plaintiff recovers if the owner/occupier has created the condition or if there has been actual or constructive notice of the condition which led to the injury. As the Fourth Department has stated:

In slip and fall cases involving the presence of slippery or wet substances, absent evidence that the owner of the premises created a dangerous condition, "liability [can] be predicated only on failure of [the owner] to remedy the danger presented by the liquid after actual or constructive notice of the condition" ( Piacquadio v Recine Realty Corp., 84 NY2d 967, 969; see, Monje v Wegman's Enters., 192 AD2d 1133; Anderson v Klein's Foods, 139 AD2d 904, affd 73 NY2d 835, rearg denied 73 NY2d 918) (Winecki v West Seneca Post 8113, Inc., 227 AD2d 978).

There is *** no basis to conclude that the liquid was on the floor a sufficient length of time that defendant, in the exercise of due care, should have known of and corrected the condition (see, Gordon v American Museum of Natural History, 67 NY2d 836, 838; Anderson v Klein's Foods, supra, at 905). Further, an owner's "general awareness" that a dangerous condition may exist is insufficient to support a finding that the owner had constructive notice of the specific condition that caused the plaintiff to slip and fall ( Gordon v American Museum of Natural History, supra, at 838; see, Piacquadio v Recine Realty Corp., supra, at 969; Snyder v Golub Corp., 199 AD2d 776, 777, lv denied 83 NY2d 754) (Id., at 979).

The limited nature of the defendant's burden is underscored by the Fourth Department case of Anderson v Klein's Foods (139 AD2d 904), where the plaintiff slipped and fell on squashed grapes found on the floor of a grocery store. Three Justices voted to reverse a jury verdict in the plaintiff's favor, holding that there was no proof that would allow the jury to do more than speculate as to the length of time the grapes had been lying on the floor. Two Justices dissented, arguing that "it can be inferred from the condition of the grapes themselves that they were on the floor long enough that an employee of defendant exercising reasonable care, should have noticed them and remedied the situation" (139 AD2d, at 905). The Court of Appeals affirmed for the reasons stated by the majority (73 NY2d 835).

Even if actual or constructive notice can be shown, however, plaintiffs have an additional element to make out: that the dangerous condition was causally tied to the injury. The Court of Appeals referred to this test in the Gordon v American Museum of Natural History case, cited above:

In *** [other] cases constructive notice was established by other evidence and the issue was whether plaintiffs had presented sufficient evidence on the issue of causation insofar as both plaintiffs failed to specify which step they had fallen on and what condition -- wear, wetness or litter -- had caused them to slip. In each case, the court concluded that plaintiff had presented a prima facie case because a fall was a natural and probable consequence of the conditions present on the stairs (67 NY2d, at 838).

The court now turns to the facts of the present case. Plaintiff Laverne Nolan was a league bowler at one of defendant AMF's lanes, where renovations had been going on for a considerable period. As in most bowling alleys, the premises contained a step down from the area devoted to food sales, shoe and ball rental, and other facilities to the lanes proper. On October 18, 1998, after taking out her bowling ball and on making her way down towards the lanes, Ms. Nolan fell. She struck her face on her ball and some of her front teeth were pushed through her upper lip as a result, and she also injured her hip.

What caused this fall? Ms. Nolan now believes that she either tripped or her shoe was caught in threads from carpeting that had been cut in the area of her fall, exposing some tile flooring underneath and allegedly fraying at the cut edge. However, she has never affirmatively testified to this fact, and it is clear that it is a supposition more than a contention; she testified at depositions that she "figure[s]" her foot caught at one point, and "Maybe some threads caught on there and caused me to fall"; immediately after this she admitted that she did not know what made her fall.

Plaintiff's daughter, Kathleen Albano, also holds to this theory; but her testimony is not admissible, as she states only that her mother said at a later time that her foot caught on something, and when she herself visited the lanes the next day she saw the carpeting in the area and "put those two things together." This testimony is thus inadmissible, presenting a factual conclusion of the sort that a jury is asked to make as if it were direct observation. Her mother's reported statements that her foot caught and she fell are, of course, inadmissible hearsay, not permitted by any exception.

Hearsay that is permitted can be found in the prior inconsistent statements recorded in the defendant's accident reports. Ms. Nolan told the employees of the defendant at the time of the accident that she fell because some tables were placed too close to the step down to the lane area proper, and she could not see the step. These tables were moved into that area by other patrons, and there is and could be no claim made that defendants had prior actual or constructive notice of their placement or of the danger posed by them.

The court is forced to conclude that the plaintiff herself has failed to show the cause of her fall; her testimony is speculation only. Furthermore, it is impossible to say that the defendant had either actual or constructive notice of a dangerous condition. Even if the court were to accept that a thread from the cut carpeting caused the fall, it is not clear who was responsible for the cut edge or that the cut and the alleged subsequent fraying presented a dangerous condition of any sort. Unlike the fact patterns mentioned in Gordon, it cannot be said that "a fall was a natural and probable consequence of the conditions" at the bowling alley.

The plaintiff's complaint must be dismissed because there is no competent proof that could support a finding that the defendant was or should have been aware of a condition that could be linked to the plaintiff's fall. The plaintiff has cited a recent Fourth Department case, Charvala v Kelly & Dutch Real Estate (273 AD2d 936), which sustained a jury verdict where plaintiff fell and the next day returned to photograph protruding roots and other irregularities at the site of the fall. She was not able to show the exact root that tripped her, but could point to the general condition of the area. The facts in this case are not sufficiently similar to make the citation persuasive. Ms. Charvala worked in premises owned by the defendant, who required her to park some distance away and take one of two routes to work on foot; one of them led over a median strip also owned and maintained by defendant. It was unquestioned at trial that she tripped and fell, and no other factor was involved that could possibly have led to her accident. Here there is not only another possible explanation for Ms. Nolan's fall, but it is one that was offered by plaintiff herself.

There is no direct evidence in this case of the cause of Ms. Nolan's fall; the case is a circumstantial one. The Charvala court relied on several Court of Appeals cases defining the standard of proof in circumstantial evidence cases, and the Court there held that the jury could properly conclude that all other explanations for the fall had been ruled out. Here, on the contrary, it would be impossible to rule out the very reasonable possibility that the initial explanation given by the plaintiff was correct, and if that explanation is correct the defendants were not negligent.

The burden in a circumstantial evidence case is to rule out causes other than the defendant's negligence. This does not require the absolute elimination of other possibilities. A verdict can stand, and summary judgment would be inappropriate, if from the evidence it appears that, though a non-negligent cause cannot be ruled out, its probability is "slight" (see, Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 205, cited in Schneider v Kings Highway Hospital Center Inc., 67 NY2d 743, itself cited in Charvala.) In this case, however, the probability of such a cause is not slight at all, and the plaintiff's proof of causation is tenuous at best. Thus, there is no proof connecting the carpeting to the fall and no proof of actual and constructive notice of a dangerous condition arising from the cut edge of the carpet, and it is also apparent that the defendants did not create one by cutting or allowing the cut. Because the plaintiff has failed to establish a prima facie case, summary judgment should be granted to the defendants. Mr. O'Neill may prepare the order, without costs or disbursements.

DATED: Rochester, New York

January 5, 2001

Andrew V. Siracuse, J.S.C.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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