true, at times such as the day of the accident, when it had been raining.
The defendant contends that the position of the rugs would only become a dangerous condition if the vinyl gap was wet, and if the defendant had actual or constructive notice of any wetness. There is some evidence that the vinyl floor between the rugs was moist or damp at the time of the accident. The defendant did have constructive notice that the area of the rugs and vinyl gap might have been wet because it had been raining during the day, and it was clearly foreseeable that patrons would carry moisture in and out on wet shoes or clothing. See Padula v. Big V Supermarkets, Inc., 173 A.D.2d 1094, 1096, 570 N.Y.S.2d 850, 851 (3rd Dept. 1991). However, whether or not the vinyl gap was wet or dry at the time of the accident is immaterial. It was still a dangerous condition that was created by the defendant. In view of the fact that (1) the purpose of the rugs was to prevent accidents such as the one that occurred to the plaintiff; (2) vinyl floors are slippery and the rugs are not; (3) defendant had knowledge that persons entered all the time with water and foreign substances on their feet; (4) the condition was easily correctable by placing the two rugs together; and (5) a review of the photographs in plaintiffs' exhibits "3" and "4", clearly demonstrate that it is reasonable and foreseeable that if you put rugs in front of the entranceway to prevent patrons from slipping, you do not leave a vinyl gap where a patron will be likely to take his or her first step.
Defendant argues that it had no prior accidents in the area of the accident, or any complaints about the positioning of the rugs, and is therefore not liable. The dangerous condition was created by the defendants and, therefore, it had knowledge of the vinyl gap. There is, then, no requirement that plaintiff prove any actual or constructive notice of the dangerous condition on behalf of the defendants. Fink v. Board of Educ. of the City of New York, 117 A.D.2d 704, 705, 498 N.Y.S.2d 440, 441 (2d Dept. 1986) (citing Cook v. Rezende, 32 N.Y.2d 596, 300 N.E.2d 428, 347 N.Y.S.2d 57 (1973)). Therefore, the defendant's personnel at the post office on a full time basis did not need a complaint from a patron to correct the situation. The fact that there were no prior accidents simply means that the defendants had been very fortuitous in the past, but their "luck ran out" on August 17, 1988. If you create a dangerous condition, you are not immune from liability for the first accident, even if it happens years after the dangerous condition has been created. Burton v. State of New York, 90 A.D.2d 585, 586, 456 N.Y.S.2d 126, 127-28 (3rd Dept. 1982) ("The fact that there were no reported prior accidents at this scene over a period of many years does not, . . . provide an escape from liability. . . .) It is like harboring an admittedly vicious dog. The owner is not entitled to a "free first bite". In a similar fashion, a negligent landowner who creates a dangerous condition does not get a "free first accident".
The defendant relies upon the cases of Madrid v. City of New York, 42 N.Y.2d 1039, 369 N.E.2d 761, 399 N.Y.S.2d 205 (1977), aff'g, 53 A.D.2d 517, 383 N.Y.S.2d 621 (1st Dept. 1976),
and Spagnolia v. United States, 598 F. Supp. 683 (W.D.N.Y. 1984).
These cases are, however, distinguishable. In both cases, the courts held that the failure to use mats or rugs did not necessarily constitute negligence. In this case, the alleged negligence was not the failure to use rugs, but positioning of the rugs in such a manner as to create a dangerous condition. The defendant may not have been required to place rugs over the vinyl floor but once it does, it must do so in a reasonably safe manner. Keir v. State of New York, 188 A.D.2d 918, 919, 591 N.Y.S.2d 621, 622 (3rd Dept. 1992). This is symbolic of the old saying, "If you are going to do something, do it right, or don't do it at all." The absence of rugs may not have created a dangerous condition because the situation would have been open and obvious to all patrons. See Thornhill v. Toys "R" US Nytex, Inc., 183 A.D.2d 1071, 1072-73, 583 N.Y.S.2d 644, 645 (3rd Dept. 1992); Morell v. Peekskill Ranch, Inc., 104 A.D.2d 492, 494, 479 N.Y.S.2d 241, 244 (2d Dept. 1984) (Rubin, J., dissenting), rev'd, adopting op. of J. Rubin, 64 N.Y.2d 859, 476 N.E.2d 645, 487 N.Y.S.2d 319 (1985). However, in this case, it was the affirmative act of positioning the two rugs in such a negligent manner so as to create a dangerous condition to unsuspecting patrons that created liability as against the defendant. See Van Stry v. State of New York, 104 A.D.2d 553, 555, 479 N.Y.S.2d 258, 261 (2d Dept. 1984) (In Madrid, there was no showing that a dangerous condition persisted over time, or that the defendant had notice, actual or constructive, of the dangerous condition.)
Defendant created what appeared to be a safe, dry place for customers to enter the post office, but in fact, the entranceway was dangerous.
Finally, the dangerous condition was clearly the proximate cause of this accident. Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 489 N.E.2d 1294, 1294, 499 N.Y.S.2d 392, 392 (1985). The plaintiff fell because he stepped on the area of vinyl floor between the two rugs with moisture on the bottom of his shoe. This was an accident waiting to happen. If the two rugs had been placed together, he would have stepped on a rug and he would not have fallen because the rugs were specifically designed to prevent such accidents. There would have been no accident. Stated another way, if the rugs were placed together and plaintiff had still fallen, it would have been entirely his own fault and there would have been no negligence on the part of the defendant and, of course, no proximate cause.
Therefore, the defendant is guilty of negligence and that negligence was a proximate cause of the accident. The next issue is whether the plaintiff was guilty of comparative negligence which was also a proximate cause of the accident and his own injuries. N.Y. Civ. Prac. L. & R. § 1411 (McKinney 1976); Lamphear v. State of New York, 91 A.D.2d 791, 791, 458 N.Y.S.2d 71, 72 (3rd Dept. 1982). He was. He should have been familiar with the position of the two rugs with the vinyl gap at the entrance to the post office, having entered it on almost a daily basis for over a year and a half. He should also have been aware that he had moisture on his shoes - either water or oil. He should have exercised extra caution. He did not. When he entered the building, he did not look down at the floor. Under the circumstances, he did not exhibit the care that would be expected of a reasonably prudent man, and therefore, his actions in negligently stepping on the vinyl gap contributed to the accident.
However, the primary responsibility rests with the defendant. The defendant created the dangerous condition and should have recognized same and made the simple correction. The plaintiff was entitled to rely on defendant to not create such a dangerous condition. In other words, he was entitled to have the "rugs . . . secured and arranged to prevent slipping." (U.S. Post Office Safety and Health Inspection Checklist, Ellisburg Post Office dated May 18, 1993 - Plaintiffs' Exhibit "19"). The rugs were secured but not properly arranged. The court finds that the accident was caused 85% as the result of the negligence of the defendant, and 15% as the result of the comparative negligence of the plaintiff.
For his injuries, the plaintiff was damaged in the sum of $ 110,000 for past pain and suffering; $ 34,000 for future pain and suffering; and $ 2,833.57 for lost earnings for a total of $ 146,833.57. The plaintiff Patricia DeVeau was damaged in the sum of $ 16,500 for past loss of consortium, and $ 6,800 for future loss of consortium for a total of $ 23,300. These amounts are reduced by 15%, the amount of the plaintiff's comparative negligence. N.Y. Civ. Prac. L. & R. § 1411 (McKinney 1976).
Therefore, it is ORDERED that
1. Plaintiff John DeVeau is awarded the sum of $ 124,808.55;
2. Plaintiff Patricia DeVeau is awarded the sum of $ 19,805.00; and
3. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
David N. Hurd
U.S. Magistrate Judge
Dated: September 16, 1993
Utica, New York