In Creagh v. Trata Estiatorio and Watermill 27 Partners, LLC (decided March 14, 2011), the court denied defendant’s motion for summary judgment on the issue of notice of the allegedly hazardous condition (here, water on the floor).
Initially, the court summarized the law regarding premises liability, as well as the burdens of the parties on summary judgment in such a case (internal quotation marks and citations omitted):
[O]wners must keep premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. … In a slip-and-fall case, the plaintiff has the burden of demonstrating that the defendant either created or had actual or constructive notice of the dangerous condition which caused the injury. … To constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time before the accident to permit defendant’s employees to discover and remedy it. … When a defendant moves for summary judgment in a slip-and-fall case, it has the burden of demonstrating that it neither created nor had notice of the allegedly dangerous condition. … Even where there is no direct evidence that the defendant affirmatively created a dangerous condition, circumstantial evidence may be sufficient to create an issue of fact as to whether the defendant created such a condition.
The court found that the following evidence was “sufficient … to raise an issue of fact as to both actual notice and constructive notice of the allegedly hazardous condition”:
(1) the location of the bar area containing a sink and refrigerator which must be passed on the way to the dining area …, (2) the absence of runners or mats to soak up any water which might spill from washing/storing glasses or in connection with serving drinks, (3) Plaintiffs safety expert’s observation of a puddle on the bottom of the refrigerator, as well as his observation of rust on the bottom of the refrigerator, and his reasonable inference that water had been accumulating over time.
In addition, the court found the plaintiff’s expert’s opinion – which included citations to allegedly “non-mandatory” standards (or, as to the need for runners and mats, no standard and only the expert’s “own opinion based on his education and experience”) – was probative, and that the trier of fact could find in plaintiff’s favor even without the expert’s opinion. It further found that “[t]he absence of runners or mats to soak up water which might spill from washing/storing glasses or in connection with serving drinks, in an area where customers must pass through, as well as the evidence regarding the rusted refrigerator, and the fact that the accident occurred on a sunny day when there were only two customers in the restaurant (which would negate other causes for the accumulation of a puddle of water), is sufficient evidence for a lay person to find negligence.”
Moreover, “although the restaurant owner and employee testified that they never noticed any accumulation of water prior to the accident”, defendants did “not dispute that Plaintiff did in fact fall on water and was ‘soaked’”, which permitted the trier of fact to “conclude that the owner and employee were not very observant.”
Finally, although defendants claimed that plaintiff did “not demonstrate how long the puddle existed”, the court cited the rule that “when a property owner creates a dangerous condition by his or her own affirmative act, the usual questions of notice of the condition are irrelevant since the defendant created the condition”.
As such, defendants were not entitled to summary judgment.