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Winecki v. West Seneca Post 8113, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
May 31, 1996
227 A.D.2d 978 (N.Y. App. Div. 1996)

Summary

declining to find that Defendant created the dangerous condition because the configuration of its banquet room "creat[ed] a danger of spills."

Summary of this case from Lyman v. Petsmart, Inc.

Opinion

May 31, 1996

Appeal from the Supreme Court, Erie County, Glownia, J.

Present — Denman, P.J., Green, Wesley, Balio and Boehm, JJ.


Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: In this action, plaintiff alleges that, while she was walking across the dance floor in the banquet room of defendant's premises, she was caused to slip and fall because of liquid on the floor. Supreme Court denied defendant's motion for summary judgment dismissing the complaint. We reverse.

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 N.Y.2d 967, 969; see, Monje v. Wegman's Enters., 192 A.D.2d 1133; Anderson v. Klein's Foods, 139 A.D.2d 904, affd 73 N.Y.2d 835, rearg denied 73 N.Y.2d 918). There is no merit to the contention of plaintiff that defendant created the dangerous condition because the configuration of its banquet room required patrons to carry their drinks across the dance floor from the bar to their tables, thereby creating a danger of spills ( see, Fink v. Board of Educ., 117 A.D.2d 704, lv denied 68 N.Y.2d 607).

We further conclude that defendant met its initial burden of showing that it did not have actual notice of the alleged dangerous condition, and that plaintiff failed to raise an issue of fact in response to that proof.

With respect to constructive notice, there is no evidence regarding when the liquid was spilled on the floor. Plaintiff merely speculates that, before she fell, someone must have spilled liquid while walking across the floor. There is, therefore, 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 N.Y.2d 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 A.D.2d 776, 777, lv denied 83 N.Y.2d 754). Thus, the fact that defendant's past president checked the dance floor for spills every 15 to 20 minutes that evening, without more, is insufficient to raise an issue of fact with respect to constructive notice.


Summaries of

Winecki v. West Seneca Post 8113, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
May 31, 1996
227 A.D.2d 978 (N.Y. App. Div. 1996)

declining to find that Defendant created the dangerous condition because the configuration of its banquet room "creat[ed] a danger of spills."

Summary of this case from Lyman v. Petsmart, Inc.

In Winecki, the corporation's past president also testified that he checked the area for spills every fifteen to twenty minutes during the evening and the Fourth Department held that even this fact, "without more, is insufficient to raise an issue of fact with respect to constructive notice."

Summary of this case from Nasca v. Wal-Mart Stores, Inc.
Case details for

Winecki v. West Seneca Post 8113, Inc.

Case Details

Full title:JULIA WINECKI, Respondent, v. WEST SENECA POST 8113, INC., Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 31, 1996

Citations

227 A.D.2d 978 (N.Y. App. Div. 1996)
643 N.Y.S.2d 292

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