issue pertaining to the creation of the condition.
Absent a showing that the defendant created the condition, the plaintiff must demonstrate either actual or constructive notice as an element of their prima facie case. The defendants claim that the plaintiff has failed to submit evidence establishing that the defendants had notice of the dangerous condition. The defendants are ultimately charged with establishing the absence of notice as a matter of law. See Torres v. New York City Hous. Auth., 214 A.D.2d 518, 625 N.Y.S.2d 536, 537 (1st Dep't 1995); Colt v. Great Atl. & Pac. Tea Co. Inc., 209 A.D.2d 294, 618 N.Y.S.2d 721, 722 (1st Dep't 1994).
1. Actual Notice of the Dangerous Condition
Actual notice requires the plaintiff to prove that the defendants were, in fact, aware of the dangerous condition. Defendants have actual notice of a defect if they created the condition or received reports of it such that they have actual knowledge of the defect's existence. See Torri v. Big V of Kingston, Inc., 147 A.D.2d 743, 537 N.Y.S.2d 629, 631 (3d Dep't 1989). When a dangerous condition is the result of several factors, actual notice requires knowledge of each of those factors. Wisner v. United States, 154 F.R.D. 39, 45 (N.D.N.Y. 1994). There is no evidence suggesting that Radisson, or its employees, were aware of the spilt coffee, and therefore the defendants did not have actual notice of the condition.
2. Constructive Notice of the Dangerous Condition
A defendant has constructive notice if the condition is "visible and apparent" and "exist[s] for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Gordon, 67 N.Y.2d at 837, 501 N.Y.S.2d at 647. This requires the plaintiff to present proof of the length of time the condition existed prior to the alleged fall. Id.; see also Hammond-Warner v. United States, 797 F. Supp. 207, 211 (E.D.N.Y. 1992); MaGuire v. Southland Corp., 665 N.Y.S.2d 680, 681 (2d Dep't 1997)("Without evidence legally sufficient to permit a jury to rationally infer that the defendant had constructive notice of a dangerous condition, the defendant cannot be held liable for failure to warn or to remedy the defect.").
As there is no evidence of the creation of the condition, the defendants aver, it cannot be determined how long it existed prior to the accident, and therefore the plaintiff cannot establish a case of constructive notice. Defendants do suggest, however, that the coffee could not have been on the tile floor for more than thirty minutes prior to the accident, because the plaintiff herself walked through the immediate area on the way to the meeting room and did not see the coffee on the floor. This, however, is of no significance. The puddle of coffee could have lay there awaiting, as imperceptible to the plaintiff's eye at that moment as it was at the time of the accident. The plaintiff, however, did describe the puddle as intact with a single heel mark running through, indicative of a recent spill.
Assuming arguendo that the coffee was "visible and apparent," there is no evidence as to when the coffee was spilled on the floor, and plaintiff's failure to offer such evidence is fatal to her claim of constructive notice. See, Hammond-Warner, 797 F. Supp. at 211 ("plaintiff does not know how long the substance on which she allegedly slipped had been on the sidewalk prior to her fall"); Gordon, 501 N.Y.S.2d at 647 ("the piece of paper that caused plaintiff's fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation"); Koser v. Supermarkets General Corp., 663 N.Y.S.2d 888, 889 (2d Dep't 1997)(plaintiff, who slipped and fell on a sweet potato he described as black and rotten, did not sufficiently raise a triable issue with respect to notice to the defendants); Kane v. Human Services Center, Inc., 186 A.D.2d 539, 588 N.Y.S.2d 361, 362 (2d Dep't 1992)(reversing denial of summary judgment in part because "the mere existence of the puddle on the floor is insufficient to impute notice to the defendant, and there is no evidence that the liquid was present on the hallway floor for such a period of time as to give rise to constructive notice"); Melton v. Sears, Roebuck and Co., 157 A.D.2d 964, 550 N.Y.S.2d 222, 223 (3d Dep't 1990)("to conclude from the evidence that the wet condition of the floor was allowed to exist for any appreciable time is mere speculation"); Anderson v. Klein's Foods, Inc., 139 A.D.2d 904, 527 N.Y.S.2d 897, 898 (4th Dep't) aff'd 73 N.Y.2d 835, 537 N.Y.S.2d 481, 534 N.E.2d 319 (1988)("any finding that the grapes had been on the floor for any appreciable period of time would be mere speculation").
Moreover, as the evidence supports the conclusion that the puddle had not been previously stepped in, the telltale signs supporting an inference of a long-standing condition are not present. See Collins v. Grand Union Co., 201 A.D.2d 852, 608 N.Y.S.2d 335, 336 (3rd Dep't 1994)("there is no indication in the record that the substance was dirty or had been tracked through and, hence, no evidentiary basis for an inference as to how long the condition had existed"); see also Salty v. Altamont Assocs., 198 A.D.2d 591, 603 N.Y.S.2d 352, 353 (3d Dep't 1993)(absent description of dirty appearance of eggs, there was no evidentiary basis for an inference as to the duration of the condition); Wells v. Golub Corp., 182 A.D.2d 927, 582 N.Y.S.2d 557, 558 (3d Dep't 1992)("no evidence that the . . . mayonnaise was dirty or that it was tracked through. Under these circumstances plaintiffs could not rely on a theory of constructive notice"); but see Bashaw v. Rite Aid of New York Inc., 207 A.D.2d 632, 615 N.Y.S.2d 537, 538 (3rd Dep't 1994)(discolored food alone is insufficient to establish the period of time the condition existed absent "evidence in the record as to the amount of time necessary for the exposed substance to discolor in the manner alleged by plaintiffs").
Therefore, there is no basis to conclude that the coffee was on the floor for a sufficient length of time such that the defendants, in the exercise of due care, should have known of, and corrected, the condition. Accordingly, the defendants have established the absence of constructive notice as a matter of law.
3. A Recurrent Dangerous Condition
The plaintiff maintains that the wet condition on the marble floor, which led to plaintiff's fall and injury, was a recurrent condition, placing the defendants on constructive notice of the dangerous condition. It is correct that New York law provides, "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, 545 N.Y.S.2d 369, 371 (2d Dep't 1989)(citations omitted). See also Rivera v. National Railroad Passenger Corp., 1994 U.S. Dist. LEXIS 13224, No. 90- CV-5201, 1994 WL 512421, at *3 (S.D.N.Y. Sept. 19, 1994)(plaintiff's observation of water accumulation on four or five previous occasions does not establish a recurring, dangerous condition); O'Connor-Miele v. Barhite & Holzinger, Inc., 234 A.D.2d 106, 650 N.Y.S.2d 717, 719 (1st Dep't 1996)(finding a recurrent condition while acknowledging that "this burden is a significant one"); Padula v. Big V Supermarkets, 173 A.D.2d 1094, 570 N.Y.S.2d 850 (3rd Dep't 1991)(repeated inclement weather established recurrent dangerous situation).
Evidence of a recurrent dangerous condition establishes constructive notice even though there is no evidence of the visibility and duration of the condition. However, the facts are to be analyzed in light of the closely allied situation in which an owner has only a "general awareness" of the existence of a dangerous condition. Such "general awareness" is legally insufficient to support a finding that the owner had constructive notice of the specific condition that caused the plaintiff to slip and fall. Gordon, 67 N.Y.2d at 838; Piacquadio, 84 N.Y.2d at 969; Winecki, 643 N.Y.S.2d 292 at 293; Snyder v. Golub Corp., 199 A.D.2d 776, 605 N.Y.S.2d 166, 167 (3d Dep't 1993)(reversing denial of summary judgment because the evidence only established a general awareness that produce may fall to the floor).
The plaintiff points to two facts in support of the proposition that the condition was a recurrent one. First, the bellhop's testimony that stains on the carpet abutting the marble tile made him aware that food had been spilled in the past. Second, the purported statement by the assistant manager that he had also fallen and injured himself on the slippery marble floor. Taken individually or together, these statements do not establish a factual issue of a possible recurrent condition. Food stains on the carpet adjacent to the couches only signifies that at some point in the past food was dropped, and does not establish a potentially dangerous condition. Likewise, the assistant manager's fall was a one time occurrence, to which numerous other factors may have contributed. There is no indication that other employees or guests have fallen on the marble or that it was recently installed, precluding the chronicling of similar accidents. Taken together, the statements at most establish nothing more than a general awareness for a potential dangerous condition, and do not rise to the level of a recurrent dangerous condition sufficient to place the defendants on constructive notice. See Goodman v. United States, 916 F. Supp. 362, 366 (S.D.N.Y. 1996)(granting summary judgment to defendant because testimony of recurrent condition was too vague); McClarren v. Price Chopper Supermarkets Inc., 226 A.D.2d 982, 640 N.Y.S.2d 702, 703 (3rd Dep't 1996)(two prior incidents where vandals removed the top from a bottle and turned it upside down were not "sufficiently similar to place defendant on notice of the condition giving rise to plaintiff's injury," which resulted from spillage from an upright bottle with the top in the open position).
Accordingly, there is no evidence upon which a jury could reasonably conclude that the defendants created the dangerous condition, or had actual or constructive knowledge of the dangerous condition.
The Court commiserates with the injury plaintiff suffered, however, although the laws of physics provide for every action there is a reaction, the law of torts cannot recompense ever slip and fall sans negligence.
For all the aforementioned reasons, the defendants' motion for summary judgment is granted and the complaint is dismissed. The Clerk of the Court is directed to close the case.
Joanna Seybert, U.S.D.J.
DATED: Uniondale, New York
March 9, 1998
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