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December 2, 1997

E.I. DuPONT & DE NEMOURS & CO., INC., Defendant.

The opinion of the court was delivered by: HECKMAN

 This matter was referred to the undersigned by Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendant has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, it is recommended that defendant's motion be denied.


 On December 21, 1995, plaintiffs commenced this action by filing a summons and verified complaint in New York State Supreme Court. On February 7, 1996, the case was removed to this court on the basis of diversity jurisdiction.

 The undisputed facts are as follows. At the time of the events complained of, Mr. Olejniczak was employed by Praxair, Inc. (formerly, Union Carbide Corp.). His duties included making truck deliveries of liquid nitrogen to defendant's "Yerkes" plant in Tonawanda, New York. On January 19, 1994, he arrived at the plant between 10:00 and 11:00 a.m. for a scheduled delivery. He drove the truck to the tank area and got out. It was extremely cold, and the ground was covered with packed snow and ice (see Item 21, Ex. 4).

 Shortly after his arrival, Mr. Olejniczak attempted to pump the liquid nitrogen from the vehicle to the tank, but was unable to get the hydraulic pump on his vehicle to work. He telephoned his employer, and was advised to use a steam hose to heat up the pump's hydraulic oil lines. Mr. Olejniczak obtained permission from the operator on duty to use a steam hose that was on the premises. The operator helped him hook up the steam hose. Mr. Olejniczak then proceeded to apply steam to different areas of his vehicle. During this process, he felt the hose catch. As he turned to look back at the hose, his feet came out from underneath him. He fell to the ground and landed on his backside.

 On September 8, 1997, after substantial discovery, defendant moved for summary judgment on the following grounds:

1. Plaintiffs have failed to establish that defendant's negligence was a proximate cause of the events which resulted in Mr. Olejniczak's injury.
2. Because a storm was in progress at the time Mr. Olejniczak slipped and fell, plaintiffs have failed to establish that defendant had a duty to remove snow and ice from the tank area.
3. Mr. Olejniczak assumed the risk by continuing to work with knowledge of the slippery conditions.

 Oral argument on this motion was held before the undersigned on November 17, 1997. For the following reasons, it is recommended that the motion be denied.


 I. Summary Judgment.

 Summary judgment is appropriate if the pleadings, discovery materials, and affidavits on file "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). In order to avoid summary judgment, the nonmoving party is under the obligation "to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Burke v. Bevona, 931 F.2d 998, 1001 (2d Cir. 1991). "Entry of summary judgment indicates that no reasonable jury could return a verdict for the losing party." Coach Leatherware, Inc. v. Ann Taylor, Inc., supra, 933 F.2d at 167. Stated slightly differently, "when no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994).

 II. Negligence.

 In this diversity suit, New York law provides the applicable standards for negligence. Weeks v. ARA Services, 869 F. Supp. 194, 195 (S.D.N.Y. 1994). Under New York law, to establish a cause of action in negligence a plaintiff must show (1) the existence of a duty on defendant's part as to the plaintiff, (2) a breach of that duty, and (3) injury suffered by the plaintiff as a result of the breach. Kazanoff v. United States, 945 F.2d 32, 35 (2d Cir. 1991)(citing Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981)).

 In a "snow and ice/slip and fall" case in New York, the plaintiff must also show that the defendant had actual or constructive notice of the alleged dangerous condition that caused the plaintiff to fall and that the defendant thereafter failed to use reasonable care to remedy the condition. Hurley v. Marriott Corp., 1995 U.S. Dist. LEXIS 17632, 1995 WL 694614, at *2 (N.D.N.Y. November 21, 1995); Hammond-Warner v. United States, 797 F. Supp. 207, 210-11 (E.D.N.Y. 1992); Arcuri v. Vitolo, 196 A.D.2d 519, 520, 601 N.Y.S.2d 173, 174 (2nd Dept. 1993); Porcari v. S.E.M. Management Corp., 184 A.D.2d 556, 557, 584 N.Y.S.2d 331, 332 (2nd Dept. 1992). In the case of constructive notice the plaintiff must show that the dangerous condition existed for a sufficient length of time prior to the accident for the defendant to have discovered and remedied it. Hurley, supra; see also Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 (1986).

 In addition, it is recognized that summary judgment is rarely granted in negligence cases. See, e.g., Stagl v. Delta Airlines, Inc., 52 F.3d 463, 470-71 & n. 5 (2d Cir. 1995); Goddard v. Delta Airlines, Inc., 1997 WL 12022, at *1 (E.D.N.Y. 1997); Velsini v. Cadmus, 152 F.R.D. 442, 443 (N.D.N.Y. 1994). This is because "each case presents a unique set of facts and negligence is determined upon resolution of those facts." Goddard, supra. Furthermore, "even when the facts are conceded, there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances, an issue which can rarely be decided as a matter of law." Lugo v. LJN Toys, Ltd., 146 A.D.2d 168, 170, 539 N.Y.S.2d 922, 923-24 (1st Dept. 1989)(quoting Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 (1974)), aff'd, 75 N.Y.2d 850 (1990). Thus, because of the wide variety of circumstances under which negligence actions arise, issues such as whether the defendant took adequate means to prevent the accident, whether the accident was foreseeable, the burden imposed on the defendant to prevent the accident, and the possible contributory negligence of the plaintiff are in most cases best left for the trier of fact to decide. Goddard, supra.

 With this strong caveat in mind, the court turns to a discussion of the grounds raised by defendant in support of its ...

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