I’ve spent many Saturdays wandering around Barnes & Noble bookstores. Years ago I would frequent the Astor Place store; after it closed my go-to location became the Union Square store.
That was my awkward segue into today’s post, about a slip-and-fall case against the behemoth bookseller. The accident in this case, Seleman v. Barnes & Noble, occurred at the store’s Upper East Side location, located at 150 East 86th Street, at Lexington Avenue. Here’s the complaint.
Plaintiff claims he slipped and fell on a “wet and greasy substance” on a descending escalator. Last week, the Appellate Division, First Department reversed the trial court’s decision awarding summary judgment to defendant and dismissing plaintiff’s complaint.
In slip-and-fall cases – which fall under the general category of “premises liability” – the plaintiff must typically prove that the defendant had actual or constructive notice of the allegedly dangerous condition. Generally, “constructive” notice exists where, in the absence of “actual” notice, a defect is visible and apparent and exists for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.
In the Seleman case, the Appellate Division held that plaintiff presented enough evidence of such notice to overcome summary judgment:
Plaintiff alleges that he slipped and fell backwards on a wet and greasy substance after stepping onto a descending escalator on defendant’s premises. In response to these allegations, defendant made a prima facie showing of its entitlement to judgment as a matter of law. Specifically, defendant submitted, among other things, an expert affidavit purporting to show that the manner in which plaintiff allegedly fell was not physically possible, because both the tread and riser configuration of the escalator steps prevent a slippery surface. The expert further stated the treads’ coefficient of friction, either wet or dry, exceeded the applicable standard for slip resistance.
However, in response, plaintiff raised a triable issue of fact to rebut defendant’s prima facie showing. Plaintiff stated in his affidavit and his deposition testimony that he saw water on the marble floor near the escalator and that the escalator felt slippery and greasy as he stepped onto it. In addition, a nonparty witness averred that she saw a wet and slippery condition on the escalator about 45 minutes to an hour before the accident, and that as a result, she decided to take the stairs rather than use the escalator. This evidence was sufficient to establish defendant’s constructive notice of the specific wet condition that allegedly caused plaintiff’s fall.
While the ultimate question of liability has yet to be determined, it’s a good idea to be careful during your next visit to Barnes & Noble, whether you are riding the escalator (see above), or enjoying a hot cup of tea.