Expert Testimony Creates Issue of Fact in Slip-and-Fall Case

In Bynoe v. Target Corporation, the Second Circuit recently vacated the trial court’s award of summary judgment to defendant.  In this slip-and-fall case, plaintiff Bynoe sued after slipping and falling on a puddle of syrup from a fallen Del Monte fruit cup in a Brooklyn Target. The court’s decision turned on the issue of “constructive notice”.

“Under New York law, a landowner, who did not create the dangerous condition, is liable for negligence when a condition on his land causes injury only when the landowner had actual or constructive notice of the condition.”

Since plaintiff did not “contend that Target or its employees caused the syrup spill, or that anyone employed by Target possessed actual knowledge of the spill … the sole disputed issue at summary judgment was whether a reasonable jury could find that Target had constructive notice of the syrup spill.”  Target had the initial burden of establishing that it did not have such constructive notice.

The law provides:

To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.  [T]here are two ways in which a plaintiff can establish constructive notice on the part of the defendant: either (i) by demonstrating that the defective condition (a) was visible and apparent and (b) had existed for a sufficient length of time to permit the defendant to discover and remedy the condition, or (ii) by demonstrating that the defect is a recurring condition. Under the principles of Gordon, awareness of a general dangerous condition is not enough to charge a defendant with constructive notice of the particular dangerous condition that caused an injury.

The parties didn’t dispute that the spilled syrup was visible and apparent; therefore, the only issue was “whether the spilled syrup had been present for a sufficient length of time for purposes of imputing constructive notice to Target.”

As to this issue,

two independent eyewitnesses averred that the liquid looked fresh, because it did not have any footprints, tracks, or wheel marks in it, through it, or around it. They also stated that the spill did not appear to be dirty, was syrupy, mostly clear, and “a little bit creamy in color.” A Target store manager testified that as part of a regular inspection of the premises, she had walked past the aisle between ten and thirty minutes prior to being notified of the accident. Bynoe herself described the spill as “clear,” “a little gluey,” and in the shape of a “broken circle,” with liquid running out where her fall had broken the circle. Later, while in the emergency room, Bynoe described the syrup that remained on her slippers as dried and sticky.

Based on this evidence, the trial court determined that defendant met its initial burden of demonstrating that the spilled liquid “had not existed for a significant amount of time prior to the accident.”

Plaintiff opposed by submitting expert testimony. Her expert, William Marletta, opined that “in order for [the spilled syrup] to dry up and become sticky” it must have existed on the floor “for at least an hour, if not several hours” prior to the accident. He testified that the syrup could become “whitish” as it evaporates and crystallizes. Plaintiff argued that this testimony creates a genuine issue of material fact, precluding summary judgment.

The trial court, however, held that plaintiff’s expert’s conclusion “ignore[d] Plaintiff’s description of the syrup at the scene of the accident and [was] instead based only on her later description of the syrup” at the hospital, and on that basis found the testimony insufficient to satisfy plaintiff’s burden.

The Second Circuit disagreed, and held that summary judgment was not warranted:

The District Court found that the expert misinterpreted plaintiff’s testimony and based his conclusions on incorrect facts. We disagree. Bynoe testified that the syrup at the time of her fall was “gluey,” and that it was sticky when she stepped in it. The expert’s conclusions are based, inter alia,on those facts. He did not, contrary to the District Court’s finding, rely only on Bynoe’s description of the syrup after she arrived at the hospital. Further, Dr. Marletta’s testimony that the syrup would turn “whitish” as it sat is also consistent with the two independent eyewitnesses’ statements that the spill was “creamy in color.” A jury, of course, need not credit the expert’s conclusions or the plaintiff’s underlying testimony. But on summary judgment, the District Court must construe the evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in its favor. The District Court did not properly do so here.

It further noted that the trial court did not, as it was permitted to do, conduct an analysis to determine whether plaintiff’s expert’s testimony was inadmissible as unreliable or speculative, and “appears to have either missed the point of certain of his findings and conclusions, or failed to view them in the light most favorable to the plaintiff.”

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