This was originally published on the SGR Blog.
Was City on Actual/Constructive Notice of Dangerous Condition?
Michael Hegeman alleged that, on June 17, 2018, at approximately 11:45 a.m., he arrived at a soccer field in a public park owned by the City of Newburgh. His son’s soccer team was scheduled to play a game on that field. After he arrived, Hegeman went over to an area with bleachers and saw broken glass bottles all over the ground in that area. He became concerned, because his son and his son’s teammates would be in that area, so he and some other parents and coaches started picking up the broken glass. While picking up the broken glass, Hegeman took a step backwards. When his foot came down, it came down upon a large piece of a broken glass bottle, which pierced his shoe and cut into his foot.
Hegeman then sued the City of Newburgh for personal injury. The City moved for summary judgment dismissing the complaint, arguing, among other things, that it did not create the allegedly dangerous condition that caused Hegeman’s injuries, or have actual or constructive notice of that condition. In support of that argument, the City submitted an affidavit from a groundskeeper who worked at the park on the day of the accident, who was responsible for inspecting and cleaning the area where the accident occurred. In opposition, Hegeman argued that the City failed to make a prima facie showing of its entitlement to judgment as a matter of law, and that, in any event, his evidentiary submissions in opposition to the motion raised a triable issue of fact.
Supreme Court granted the City’s motion. Hegeman appealed.
A defendant is deemed to have constructive notice of a dangerous condition on its property when the condition is visible and apparent and existed for a sufficient length of time prior to the accident to permit the defendant’s employees to discover the condition and remediate. When a defendant landowner moves for summary judgment dismissing the complaint, to meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the accident. Mere reference to the defendant’s general daily cleaning practices will not suffice. Here, the affidavit of the City’s groundskeeper, who, among other things, described his general daily cleaning practices, failed to establish, prima facie, that the City lacked constructive notice of the problematic condition. Accordingly, Supreme Court should have denied the City’s motion for summary judgment dismissing Hegeman’s complaint.