Potato Chip Bag-Kick Slip/Fall Case Survives Summary Judgment

Here’s another reason not to eat potato chips – or at least not to litter.

Plaintiff Yvette Hawthorne-King alleged that she slipped and fell on exterior steps of a NYC Housing Authority Building “when she used her foot to swipe aside a potato chip bag on one step, and then slipped on an oily substance underneath the bag.” The Supreme Court, NY County dismissed plaintiff’s complaint.

The Appellate Division, First Department, in Hawthorne-King v. New York City Hous. Auth., 2015 NY Slip Op 04247 (App. Div. 1st Dept. May 19, 2015), reversed that decision and held that the motion should have been denied.

From the decision:

NYCHA failed to meet its prima facie burden to show that its employees did not have constructive notice of the alleged condition. NYCHA’s witness, the supervisor of caretakers, testified only as to a general cleaning routine, which did not indicate when the exterior stairs had last been cleaned or inspected prior to the accident. The caretaker who would have inspected and cleaned the building on the day of the accident did not testify or submit an affidavit. The documentary evidence submitted by NYCHA also did not establish the agency’s lack of constructive notice of the alleged defect, because those records only indicated that a caretaker went up the stairs and that caretakers were working “on steps – A’ side” about an hour and a half after plaintiff’s accident, and there is no evidence that the entries referred to the accident location itself.

Assuming that NYCHA met its burden of demonstrating that its employees did not create the wet or greasy condition on the steps, plaintiff raised an issue of fact through her testimony and the affidavit of her daughter, who both stated that they had seen NYCHA employees pouring liquid from buckets down the subject stairs after cleaning the building’s interior on previous occasions. Further, plaintiff’s daughter averred that she was with plaintiff when she fell, and saw that the stairs were wet and that the liquid on the stairs had the same consistency and smell as the liquid that the building’s porters used to clean the interior stairs. This is sufficient to raise an issue of fact as to whether NYCHA’s employees caused and created the greasy condition

Finally, the court rejected defendant’s argument that plaintiff was the “sole proximate cause” of the accident, reasoning that “[t]o the extent that plaintiff may have contributed to the accident by swiping the potato chip bag with her foot, rather than walking around it, the issues of contributory negligence and proximate cause are questions of fact for the jury to decide.”

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