contrary. In Padula, the plaintiff slipped and fell on a wet floor in the defendant's supermarket. The plaintiff showed that the defendant stored shopping carts outside where they could become wet from snow and rain, and that the defendant made no arrangement for drying the carts before customers brought them into the store. The Appellate Division, Third Department held that the trial court properly charged the jury that it could find that the defendant created the dangerous condition. The court emphasized that there were "affirmative acts" by the defendant that created the condition. The court noted specifically that the defendant stored the carts outdoors "by design" where they got wet "without any arrangement or provision for drying prior to indoor use." Also, the defendant "specifically permitted customers to take the store-provided carts outside and into the parking lot in inclement weather, again without arrangement for drying prior to reuse inside the store." Id. at 1096, 570 N.Y.S.2d at 851-52.
It was obvious in Padula that the use of dripping wet shopping carts in a supermarket was likely to cause the floor to become wet and slippery, a dangerous condition. Goodman and Weiser have not proffered any evidence that the use of movable crowd control barriers has any similar tendency. In fact, O'Connell testified that he was aware of no injury other than Goodman's resulting from the crowd control barriers at Castle Clinton. Plaintiffs have not shown that defendant engaged in any affirmative acts that were likely to cause a barrier to be located in the walkway. Thus, plaintiffs are really arguing that the use of movable crowd control barriers is itself the creation of a dangerous condition.
Plaintiffs' position comes very close to the doctrine of res ipsa loquitur, under which "an inference of negligence may be drawn solely from the happening of the accident upon the theory that 'certain occurrences contain within themselves a sufficient basis for an inference of negligence.'" Dermatossian v. New York City Transit Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 788, 492 N.E.2d 1200 (1986) (quoting George Foltis, Inc. v. City of New York, 287 N.Y. 108, 116, 38 N.E.2d 455 (1941)). Res ipsa loquitur applies, however, only when the instrumentality that caused the injury was within the exclusive control of the defendant. Id., 501 N.Y.S.2d at 788. The barrier that allegedly caused Goodman's fall was in a location traversed by the public. Plaintiffs have not put forward any evidence that moving the barrier required special equipment or strength; O'Connell's testimony that the barrier weighed approximately forty pounds is not sufficient to establish that the barrier could not easily be moved. Plaintiffs have proffered no evidence from which a reasonable inference could be drawn that any particular person moved the barrier. Thus, it cannot reasonably be inferred that any person who moved the barrier was employed by defendant. Because plaintiffs have not made any showing that the barrier was in defendant's exclusive control, res ipsa loquitur is not appropriate here. And because plaintiffs also have not presented any evidence showing that defendant caused the barrier to be located improperly, they have not demonstrated that there is a genuine issue of material fact as to whether defendant created a dangerous condition. Without speculation, that question cannot be answered "yes."
Nor have plaintiffs established that defendant had actual or constructive notice of the condition. There is no evidence that defendant had actual notice that the barrier had been placed in the walkway. "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." Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 647, 492 N.E.2d 774 (1986) (citations omitted). There is no evidence regarding how long the barrier had been located in the walkway before Goodman's accident. The fact that the barrier weighed approximately forty pounds does not indicate that "it is likely it had been there for some time," as plaintiffs contend, (Pl. Mem. at 10-11).
Plaintiffs can establish constructive notice without proving the length of time that elapsed while the barrier was located in the walkway by putting forth evidence of a recurrent dangerous condition. "When a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific reoccurrence of that condition." Weisenthal v. Pickman, 153 A.D.2d 849, 851, 545 N.Y.S.2d 369, 371 (2d Dep't 1989) (citations omitted); Alvarez v. Mendik Realty Plaza, Inc., 176 A.D.2d 557, 575 N.Y.S.2d 25 (1st Dep't 1991), leave to appeal denied, 79 N.Y.2d 756, 583 N.Y.S.2d 191 (1992). Plaintiffs point to O'Connell's testimony that the barriers "were moved constantly, overnight," that there was a "normal practice" of putting back barriers that were found during the day to have been moved, and that the barriers "could be angled." According to plaintiffs, these facts establish a recurrent dangerous condition. But this testimony is too vague to satisfy plaintiffs' burden. O'Connell's testimony that barriers were moved is not evidence that the two barriers near the exit were moved into the walkway or to any other place where they became dangerous. Plaintiffs do not demonstrate that the barriers were repeatedly "angled" so that they protruded into the walkway or were otherwise hazardous. There is no evidence that any barrier had ever been in the walkway prior to Goodman's accident. Plaintiffs have failed to put forth sufficient evidence to show a genuine issue of fact as to whether there was a recurrent dangerous condition.
For the foregoing reasons, defendant's motion for summary judgment is granted.
Dated: New York, New York
March 2, 1996
MIRIAM GOLDMAN CEDARBAUM
United States District Judge
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