Motion for Summary Judgment granted in part and denied in part; Defendant established as a matter of law that it had no duty to warn of open and obvious condition on the property; however, issue of fact as to whether staircase, which had allegedly become wet and slick from tracked-in rain, constituted a dangerous condition. Additionally, Defendant failed to establish as a matter of law that it lacked constructive notice of the alleged dangerous condition.
|Claimant(s):||SOPHIA LA FONTAINE|
|Claimant short name:||LA FONTAINE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||By Stipulation and Order entered on September 12, 2016, the Court amended the caption sua sponte to reflect the State of New York as the only proper Defendant. Thus, to the extent Defendant seeks to amend the caption to remove "New York State Fair" and "the Great New York State Fair" as Defendants, such relief is moot.|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Woodruff Lee Carroll, P.C.
By: Woodruff Lee Carroll, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Bonnie Gail Levy, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 25, 2020|
|See also (multicaptioned case)|
Claimant Sophia La Fontaine filed this Claim on June 16, 2016, seeking damages for personal injuries allegedly suffered following a slip and fall in the International Building at the New York State Fair on August 28, 2013.(2) Defendant now moves for summary judgment dismissing the Claim. Claimant opposes the motion.
In support of its motion, Defendant attaches, among other things, Claimant's deposition transcript as well as the deposition transcript of Claimant's daughter, Caroline Tucker.
Claimant testified that, on August 28, 2013, she attended the New York State Fair in Syracuse, New York with her daughter, Caroline Tucker, and a friend, Jason Young (see Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, Ex 6 [La Fontaine EBT Tr.] at 55, line 10]). Claimant explained that at approximately 8:30 p.m., "it started to pour and rain" (id. at 55, line 4) and she, Ms. Tucker, and Mr. Young went into the International Building so that she and Ms. Tucker could get something to eat (id. at 52-53). Claimant described that, upon entering the International Building, she noticed that it was "quite crowded" (id. at 54, line 9) and "[e]verything was soaking wet" (id. at 56, line 5). Claimant explained that she and her daughter first negotiated the steps without incident to find a table; immediately thereafter, Claimant returned down the same set of stairs alone to procure food (see id. at 56, lines 14-22). Claimant testified she noticed the stairs were wet during her first ascent and held the railing on her way back down the stairs to obtain food (see id. at 61-63). However, Claimant averred she was unable to hold onto the railing on her second ascent because "people were side to side to [her], and [she] was in the middle" (id. at 61, line 15). Claimant testified on her second ascent she "slipped and fell up and ended up on the platform" (see id. at 61, lines 17-18).
Claimant testified she observed a "cleaning lady" who was "standing on the right side up on the platform with a mop in her hand" (id. at 63 line 4; 64, lines 14-17) and noticed "the landing was kind of dried up a little bit" (id. at 76, lines 20-21). Ms. Tucker also testified at her deposition she observed "probably one or two cleaning people within the building" who "had mops with them" near the entrances of the International Building (Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, Ex 8 [Tucker EBT Tr.] at 18, lines 11, 20). Ms. Tucker, however, could not recall whether there was a cleaning person near the staircase where Claimant fell (see id. at 19, lines 8-10). Additionally, Ms. Tucker's account of the accident differed from that of Claimant. Specifically, Ms. Tucker testified she and Claimant first went to obtain food together and then negotiated the stairs for the first time to find a table at which time Claimant slipped and fell (id. at 16, lines 12-20). Ms. Tucker recalled "that all of the steps and the floor around the area was wet, but [she, Ms. Tucker,] did not fall" (id. at 17, line 22 through 18, line 1). Defendant now moves for summary judgment dismissing the Claim. Claimant opposes the motion.
Summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (St. Paul Indus. Park v New York State Urban Dev. Corp., 63 AD2d 822, 822 [4th Dept 1978]). It is well settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). "A moving party must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" (Orcutt v American Linen Supply Co., 212 AD2d 979, 980 [4th Dept 1995]). "The moving party's failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Vega v Restani Const. Corp., 18 NY3d 499, 503  [internal quotation marks, citation, and alterations omitted]).
However, if the proponent of a motion for summary judgment has established its prima facie entitlement to judgment as a matter of law, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 ). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, Claimant (see Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept 1983]).
In general, the State has a duty to maintain its property in a reasonably safe condition (see Preston v State of New York, 59 NY2d 997, 998 ; Basso v Miller, 40 NY2d 233, 241 ). "[A] landowner's duty to warn of a latent, dangerous condition on his property is a natural counterpart to his duty to maintain his property in a reasonably safe condition" (Galindo v Town of Clarkstown, 2 NY3d 633, 636 ; Breau v Burdick, 166 AD3d 1545, 1546-1547 [4th Dept 2018]). However, landowners have no duty to warn of a condition on their property that is open and obvious "because in such instances the condition is a warning in itself" (Schneider v Corporate Place, LLC, 149 AD3d 1503, 1504 [4th Dept 2017] [internal quotation marks and citations omitted]; see Tagle v Jakob, 97 NY2d 165, 169 ). As the Court of Appeals has held:
"Where a danger is readily apparent as a matter of common sense, there should be no liability for failing to warn someone of a risk or hazard which he [or she] appreciated to the same extent as a warning would have provided. Put differently, when a warning would have added nothing to the [plaintiff's] appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning"
(Liriano v Hobart Corp., 92 NY2d 232, 242  [internal quotation marks and citation omitted]). "For a condition to be open and obvious as a matter of law, it must be one that could not be overlooked by any observer reasonably using his or her ordinary senses" (Garrido v City of New York, 9 AD3d 267, 268 [1st Dept 2004]; see Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 71 [1st Dept 2004] ["[t]he hazardous or dangerous condition must be of a nature that could not reasonably be overlooked by anyone in the area whose eyes were open, making a posted warning of the presence of the hazard superfluous" (citations omitted)]; Miller v Stein, 242 AD2d 950, 951 [4th Dept 1997] ["There is no duty to warn of a condition that can be readily observed by the reasonable use of senses" (internal quotation marks and citations omitted)]). A court may determine that a risk was open and obvious as a matter of law only "when the established facts compel that conclusion . . . and may do so on the basis of clear and undisputed evidence" (Tagle, 97 NY2d at 169).
Here, Claimant testified at her deposition that she noticed the stairs were wet during her first ascent and held the railing on her way back down the stairs (see e.g. La Fontaine EBT Tr. at 61-63). The posting of a "wet floor" sign would have been superfluous and merely warned of a condition of which Claimant was fully aware and appreciated. In opposition, Claimant submits several affidavits, including an affidavit which purports to alter her deposition testimony regarding how the incident occurred. Specifically, Claimant avers she traversed the stairs only once with a food tray and slipped and fell during such ascent (see Third Affidavit of Sophia La Fontaine, sworn to on June 8, 2020 ¶¶ 5-10; Fourth Affidavit of Sophia La Fontaine, sworn to on June 8, 2020 ¶ 3). The Court concludes that Claimant's affidavits, "present apparent feigned issues of fact designed to avoid the consequences of her earlier deposition testimony and, thus, [are] insufficient to defeat [Defendant's] motion for summary judgment" dismissing the cause of action premised upon a failure to warn of the wet stairs (Mau v Schusler, 124 AD3d 1292, 1298 [4th Dept 2015] [internal quotation marks, citation, and alteration omitted]). Notably, Claimant concedes in two of her four affidavits submitted in opposition to the motion that the wet stairs were "open and obvious" (see First Affidavit of Sophia La Fontaine, sworn to on June 6, 2020 ¶ 13; Second Affidavit of Sophia La Fontaine, sworn to on June 6, 2020 ¶ 15). Accordingly, the Court concludes that the wet stairs were an open and obvious condition of which Defendant had no duty to warn. Consequently, Defendant's motion for summary judgment is granted insofar as it seeks dismissal of so much of the Claim premised upon a negligent failure to warn of an alleged hazardous condition.
Although the open and obvious condition of the wet stairs negated Defendant's duty to warn Claimant of such condition, it did not obviate Defendant's duty to keep its premises reasonably safe (see Westbrook, 5 AD3d at 72; MacDonald v City of Schenectady, 308 AD2d 125, 126-127 [3d Dept 2003]; Pelow v Tri-Main Dev., 303 AD2d 940, 941 [4th Dept 2003] ["The issue whether a condition was readily observable impacts on (the) plaintiff's comparative negligence and does not negate (the) defendant's duty to keep the premises reasonably safe. An open and obvious condition merely negates the duty to warn" (internal citations omitted)]).
In a premises liability claim, a claimant must show that an unsafe or dangerous condition existed on the premises; that the State either created the dangerous condition, or had actual or constructive notice of the dangerous condition and failed to alleviate the dangerous condition within a reasonable time; that the condition was the proximate cause of the accident; and that the claimant suffered damages as a result (see Gordon v Museum of Natural History, 67 NY2d 836, 837-838 ; Quintanilla v State of New York, 94 AD3d 846, 847 [2d Dept 2012]; Gernat v State of New York, 23 AD3d 1015, 1015-1016 [4th Dept 2005]).
Thus, "[a] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (Frazier v City of New York, 47 AD3d 757, 758 [2d Dept 2008]; see Costanzo v Woman's Christian Assn. of Jamestown, 92 AD3d 1256, 1257 [4th Dept 2012]). Courts have held that a property owner is "not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather" (Yearwood v Cushman & Wakefield Inc., 294 AD2d 568, 568-569 [2d Dept 2002]; Miller v Gimbel Bros., 262 NY 107, 108-109 ). Stated differently, a property owner is "not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain" (Negron v St. Patrick's Nursing Home, 248 AD2d 687, 687 [2d Dept 1998]). Moreover, "[a] general awareness that water might be tracked into a building when it rains is insufficient to impute, to a defendant, constructive notice of the particular dangerous condition" (Grib v New York City Hous. Auth., 132 AD3d 725, 726 [2d Dept 2015]; see Smith v May Dept. Store, Co., 270 AD2d 870, 870 [4th Dept 2000]).
Defendant contends that the wet stairs do not constitute a dangerous condition (see Memorandum of Law in Supp of Mot, at 5-6).
As Defendant notes, "whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact" (Trincere v County of Suffolk, 90 NY2d 976, 977  [internal quotation marks and citation omitted]; see Lupa v City of Oswego, 117 AD3d 1418, 1418 [4th Dept 2014]; see also Murray v Banco Popular, 132 AD3d 743, 744 [2d Dept 2015] ["a defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action"]).
Here, Defendant has failed to meet its prima facie burden of establishing that no dangerous condition existed. Claimant testified at her deposition that there was "water . . . running down the stairs" (see La Fontaine EBT Tr. at 76, line 13-14) and the stairs were "all slick" (id. at 76, line 9). Although it is undisputed the staircase had become wet as a result of tracked-in rain, the Court concludes that Claimant's testimony, which is annexed in support of Defendant's motion, presents an issue of fact as to whether the stairs had become so wet and slick from the rain so as to constitute a dangerous condition (see e.g. Pignatelli v Gimbel Bros., Inc., 285 App Div 625, 627 [1st Dept 1955]).
The cases cited by Defendant in support of its contention that no dangerous condition existed on the property are distinguishable. First, in Miller, the Court of Appeals did not hold that a wet surface as a result of tracked in rain could never be a dangerous condition; rather, it held that a landowner cannot be held liable for injuries sustained as a result of tracked-in rainwater and mud "unless it is shown that the construction of the store is inherently dangerous or that he failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions" (Miller, 262 NY 108-109).
Indeed, in Pignatelli, the First Department clarified the Court of Appeals' decision in Miller that a wet floor due to tracked-in rain "in another pattern of proof, could not become the ingredients of actionable negligence" (Pignatelli, 285 App Div at 626). In Pignatelli, the First Department affirmed judgment upon a jury verdict for the plaintiff in a slip-and-fall case involving tracked-in mud and water in a vestibule of the defendant's store. In particular, the court concluded that the jury could have reasonably determined that water and mud tracked into the store's vestibule made the floor dangerously slippery (see id. at 627). Here, Defendant has failed to meet its prima facie burden of establishing that the stairs were not dangerous, even when wet.
The remaining cases cited by Defendant for the proposition that a wet surface from rain cannot constitute a dangerous condition are distinguishable as they involve wetness from rain on exterior, uncovered surfaces (see Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007] [uncovered ramp connecting rooftop parking lot to merchandise pick-up area wet from rain not a dangerous condition]; Richardson v Campanelli, 297 AD2d 794, 794 [2d Dept 2002] [driveway apron wet from rain was not a dangerous condition]; Wessels v Service Mdse., 187 AD2d 837, 837 [3d Dept 1992] [mere fact that sidewalk was wet from rain not sufficient to establish dangerous condition], or a factual determination that a condition was not dangerous after trial (see Filecco v State of New York, UID No. 2010-030-027 [Ct Cl, Scuccimarra, J., Sept. 7, 2010] [the claimant failed to establish at trial that the loading dock upon which he slipped and fell was a dangerous condition]).
Additionally, Defendant has failed to meet its prima facie burden of lack of notice. "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 [the] defendant's employees to discover and remedy it" (Gordon, 67 NY2d at 837). '"A defendant cannot satisfy its burden merely by pointing out gaps in the plaintiff's case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident'" (Lewis v Carrols, LLC, 158 AD3d 1055, 1056 [4th Dept 2018], quoting Sabalza v Salgado, 85 AD3d 436, 437-438 [1st Dept 2011]). "Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice" (Arcabascio v We're Assoc., Inc., 125 AD3d 904, 904-905 [2d Dept 2015]).
Here, Ms. Tucker testified at her deposition she observed individuals mopping in the International Building, "especially the entrances, they were trying to make sure the entrances were clear" (see Tucker EBT Tr. at 18, lines 19-22). Additionally, Claimant testified she observed a "cleaning lady" who "was standing on the right side up on the platform with a mop in her hand" (La Fontaine EBT Tr. at 63 line 4; 64, lines 14-17) and noticed that "the landing was kind of dried up a little bit" (id. at 76, lines 20-21). The Court concludes that such evidence describes "general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, [and] is insufficient to establish a lack of constructive notice" (Arcabasio, 125 AD3d at 904-905; Herman v Lifeplex, LLC, 106 AD3d 1050, 1051 [2d Dept 2013]). Defendant has offered no affirmative proof establishing when the steps where Claimant fell were last cleaned or inspected and thus, failed to eliminate all issues of fact with respect to its constructive notice of the wet condition on the stairs (see Jordan v Juncalito Abajo Meat Corp., 131 AD3d 1012, 1012-1013 [2d Dept 2015] ["the defendant failed to eliminate all triable issues of fact with regard to its contention that it did not have constructive notice of the alleged wet floor since it failed to proffer any evidence demonstrating when the subject area was last cleaned or inspected prior to the plaintiff's accident"]; see also Cater v Double Down Realty Corp., 101 AD3d 506, 506 [1st Dept 2012] [the defendants failed to meet prima facie burden on summary judgment when plaintiff alleged she slipped and fell on wet stairs, and defendants failed to offer specific evidence as to their activities on the day of the accident, including evidence indicating the last time the staircase was inspected, cleaned or maintained before the plaintiff's fall]).
Consequently, Defendant has failed to meet its prima facie burden establishing that it maintained its premises in a reasonably safe condition. Since Defendant has failed to make its prima facie showing, the Court need not address the sufficiency of Claimant's opposition papers as they relate to Defendant's alleged negligent failure to maintain its premises in a reasonably safe condition (see Alvarez, 68 NY2d at 324).
Accordingly, it is hereby:
ORDERED that Defendant's Motion No. M-95436 is granted only insofar as it seeks dismissal of so much of the Claim premised upon a negligent failure to warn of an alleged dangerous condition; and it is further
ORDERED that Defendant's Motion No. M-95436 is otherwise DENIED.
June 25, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Notice of Motion for Summary Judgment, dated May 27, 2020.
(2) Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, dated May 27, 2020, with attachments.
(3) Memorandum of Law in Support of Defendant's Motion for Summary Judgment, dated May 27, 2020.
(4) Memorandum in Opposition to Motion for Summary Judgment, undated.
(5) Affirmation of Woodruff Lee Carroll, undated.
(6) First Affidavit of Sophia La Fontaine, sworn to on June 6, 2020.
(7) Second Affidavit of Sophia La Fontaine, sworn to on June 6, 2020.
(8) Third Affidavit of Sophia La Fontaine, sworn to on June 8, 2020.
(9) Fourth Affidavit of Sophia La Fontaine, sworn to on June 8, 2020.
1 Although the Claim alleges that the incident occurred on August 26, 2013, it appears from deposition transcripts attached as exhibits in support of this motion for summary judgmentthat the incident occurred on August 28, 2013.