In Tompa v. 767 Fifth Partners, the Appellate Division, First Department affirmed the dismissal of plaintiff’s slip-and-fall case.
Plaintiff alleged that she slipped and fell on a thin sheet of ice on the plaza in front of defendant’s building. Defendant presented evidence that it neither created nor had notice of the icy condition of the plaza, and there was no evidence that defendant had actual or constructive notice of the icy condition.
Here,
Plaintiff argues that the only possible source of the water that froze on the plaza was a fountain situated in the area where she fell. She advances two theories: (1) that defendant created the icy condition by running its fountains in windy weather and notice need not be established or (2) that icing was a “recurrent condition” as a result of water being blown onto the plaza from the fountains so that defendant is properly chargeable with constructive notice of each subsequent recurrence of the condition. Plaintiff posits that the ice was the result of an “overspray condition” from the nearby fountain and submitted weather records reflecting an average wind speed of 13.5 miles an hour and wind gusts of up to 37 miles an hour during the course of the day on which the accident occurred (without indicating the specific time of the measured gusts).
Since there was no evidence that the fountain was on, plaintiff failed to demonstrate that defendant caused the icy condition.
The court then proceeded to dismiss plaintiff’s second, “overspray”, theory:
As to plaintiff’s alternative theory, nothing in the record establishes that water from the fountains was routinely deposited on the plaza to support her claim that this was a recurring condition. Nor does she establish the particular weather necessary to create the alleged icy condition. As depicted in the record, the reflecting pools are recessed below the level of the plaza. Each fountain consists of an array of sixteen water outlets, situated in the center of the pool, which elevate water to a modest height of perhaps one foot. Plaintiff’s opposing papers fail to describe the mechanism by which water would be propelled from the fountain onto the plaza’s surface, even assuming that the fountain was running. Specifically, there is no proof of the wind speed required. Thus, her theory presents an intriguing problem in fluid dynamics (windage) well beyond the knowledge and experience of the average jurist, requiring expert testimony to support such a hypothesis. In sum, even assuming that “overspray” from the fountains was a recurring condition, as plaintiff contends, there is no evidence regarding the weather conditions that might cause this effect and, arguably, put defendant on notice that icing was likely to occur. (Emphasis added.)
Finally, plaintiff’s argument that fountain must have been the source of the water ignored weather records, and was “based on sheer surmise”, namely, “that defendant’s fountain was operating, that certain weather conditions can cause water to be blown onto the plaza, that conditions on the morning of her accident were sufficient to cause water to accumulate on the plaza, where it froze, and that defendant should have known that the weather conditions that morning would cause an icy condition requiring it to take preventive action”.
the court held that “plaintiff’s assertion that the fountain must have been the source of the water on the plaza ignores the evidence contained in the weather records for the date” was “based on sheer surmise