If you see a banana peel on the stairs, don’t intentionally step on it. That’s the lesson from Betances v. 470 Audobon Ave. Corp., a recent New York Supreme Court decision. There, the plaintiff slipped on a banana peel and fell down the stairs. He sued, alleging that defendant was negligent in maintaining the staircase, and permitting the staircase to exist in an unsafe and dangerous condition. The court granted defendant summary judgment and dismissed plaintiff’s complaint.
“In order to establish negligence, a plaintiff is required to prove the existence of a duty, that is, a standard of reasonable conduct in relation to the risk of reasonably foreseeable harm; a breach of that duty and that such breach was a substantial cause of the resulting injury”.
Initially, the court held that defendant did not have actual or constructive notice of any dangerous condition. As to actual notice, the court noted that the superintendent testified that in his 16 years of employment, he never received complaints about garbage or dirt on the stairs. Plaintiff also testified that he never complained about any garbage condition. As to constructive notice, the court noted plaintiff’s testimony that on the morning of his accident he didn’t see any food on the steps, and the superintendent’s testimony that he checks for “abnormalities” (such as garbage) every day, and that if he finds any, he picks them up.
Plaintiff failed to meet his burden of presenting evidence of negligence. As for the “recurring garbage condition”, the court rejected plaintiff’s reliance on an affidavit that amounted to “feigned evidence tailored to avoid the consequences of plaintiff’s deposition testimony that he did not observe any banana peels on the stairs… before the accident and never made any complaints to defendants specifically about garbage on the stairs.”
As to the alleged defective lighting in violation of the New York City Administrative Code, the court rejected plaintiff’s affidavit stating that “there was no light fixture above the stairway between the fourth and fifth floors … [which] contributed to [his] accident because it was hard for [him] to see where all of the garbage was”. Plaintiff “indisputably testified that prior to his accident, he saw the peel, and then intentionally stepped on it.” (Emphasis in original.)
As to plaintiff’s argument that the stairs’ risers and treads are in violation of the Administrative Code, the New York State Building Code, and the Property Maintenance Code of New York State, the court noted that it was undisputed that when the building was constructed in 1924, it complied with the City of New York Building Code established in 1916.
The court thus concluded:
Here, it is undisputed that plaintiff saw the alleged dangerous condition, a banana or plantain peel, prior to his accident, and intentionally stepped on such dangerous condition. Moreover, plaintiff clearly testified that the dangerous condition was the banana or plantain peel on which he stepped, and not on the lack of anti-slip protection on the stairs or the condition of the risers and treads. It is noted that in opposition, plaintiff failed to supply an affidavit by an expert which indicated that plaintiff’s fall was due to the lack of anti-slip protection on the stairs or the condition of the risers and treads, or that such contributed to plaintiff’s fall. Rather, Engineer Schwartzberg merely opines that the lack of anti-slip protection, and the condition of the risers and treads, violate certain code provisions. As defendant has established that it had no notice of such peel which caused plaintiff to slip and fall, and plaintiff has failed to raise a material issue of fact, defendant’s motion for summary judgment of dismissal is granted.