In Lacey v. Target Corp., 2015 WL 2254968 (EDNY May 12, 2015), the court reviewed and applied the relevant New York law relating to slips and falls on foreign substances. Here, plaintiff alleged that she was injured when she slipped and fell on “slippery, old and dirty pieces of apple” in defendant’s store in Brooklyn, NY. The court granted summary judgement to defendant and dismissed plaintiff’s case.
The law provides, in relevant part:
In a slip-and-fall case, a plaintiff must demonstrate that the defendant created the condition that caused the accident, or that the defendant had actual or constructive notice of the condition and failed to remedy it. …
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. …
Under New York law, [t]he mere existence of a foreign substance, without more, is insufficient to support a claim of negligence. To get to a jury, plaintiff must provide some basis for an inference that the apple pieces were there long enough to blame defendant for the accident.
In dismissing plaintiff’s negligence claim, the court explained:
[P]laintiff claims that the condition must have existed for a sufficient length of time for [Target’s] employees to discover and remedy it because it was near the produce section, and there is some testimony (mostly from plaintiff herself) that the apple pieces were brown, and therefore oxidized. On the other hand, some witnesses described the apple as “fresh” and wet with juice. Regardless, this evidence does not raise a material question of fact as to the length of time the apple was on the floor, as it could have been brown and oxidized before it fell on the floor (for example, if a customer dropped it).
In sum, a verdict in plaintiff’s favor, based solely on this record, would constitute speculation, rather than a finding of fact. The record is devoid of any facts tending to show that the apple pieces were on the floor for any appreciable length of time. On the evidence presented, the debris that purportedly caused plaintiff’s slip could have been on the floor for a long period of time, or it could have landed there only moments before plaintiff slipped on it. Consequently, plaintiff has not identified any evidence that raises a triable issue of fact as to constructive notice.
While this court dismissed plaintiff’s slip-and-fall case, its review of the law (as well as the various case law examples it cites) are instructive on this issue.