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Pignatelli v. Gimbel Brothers, Inc.

Supreme Court of New York, Appellate Division

April 26, 1955

Pignatelli
v.
Gimbel Brothers, Inc.

APPEAL from a judgment of the Supreme Court in favor of plaintiff, entered June 14, 1954, in New York County, upon a verdict rendered at a Trial Term (BRISACH, J.).

COUNSEL

John Nielsen of counsel (John P. Smith, attorney), for appellant.

Zenaida Drabkin of counsel (Grace H. Connell, attorney), for respondent.

BOTEIN, J.

After a complete trial, the jury returned a verdict in favor of plaintiff, who, after entering the vestibule of defendant's store, slipped on some mud and was caused to fall and sustain substantial injuries.

Defendant, relying upon the leading case of Miller v. Gimbel Bros. (262 N.Y. 107) contends that plaintiff failed to make out a prima facie case. So much reliance has been placed by other defendants on the Miller decision in other cases of this type that it will bear analysis. The only circumstance that the Miller

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case and this one appear to have in common is that both accidents occurred at different entranceways to defendant's department store.

In the Miller case plaintiff fell on a floor of Tennessee marble that slanted downward. It was raining, the floor was wet, and there was some mud in a corner. In dismissing the complaint, the Court of Appeals did not hold that these conditions, in another pattern of proof, could not become ingredients of actionable negligence. The court pointed out that the cause of plaintiff's fall was not shown by any direct evidence, and that it did not appear that the floor was dangerous, even when wet.

A reading of the record indicates that Mrs. Miller could not possibly have recovered, for the simple and conclusive reason that she failed to give any explanation at all of what caused her to fall. The following is literally all of the testimony in the case relating to the actual occurrence of the accident: 'A. As I went to push the revolving door, it did not move, and I pushed again and I slipped and I fell forwards on my head and my hip and my shoulder.'

The Court of Appeals in the Miller case did take occasion to enunciate general rules governing the reasonable care required of a storekeeper so that 'his customers shall not be exposed to danger of injury through conditions in the store or at the entrance which he invites the public to use. He cannot prevent some water and mud being brought into an entranceway on a rainy day and he is not responsible for injuries caused thereby unless it is shown * * * that he failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions' (pp. 108, 109).

The proof in this case fully meets those standards. It had rained heavily for many hours, stopping about four or five hours before the accident occurred. At the time of the accident there were puddles of water, mud and debris in the streets and in the gutters, and some puddles and debris on the sidewalks. The sun never emerged that day. Plaintiff entered the vestibule of defendant's store, which had a terrazzo floor sloping down ten inches towards a revolving door. There were no mats on the floor, which was wet and had accumulations of dirt, mud and debris. As she approached the revolving door the heel of her right foot slipped on some mud and she was thrown to the floor.

An expert testified that a terrazzo floor will become slippery when wet, and that rubber mats are usually employed to overcome that condition. Various employees of defendant also testified that ...


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