This was originally published on the SGR Blog.
The Copacabana nightclub, which opened in 1940 and recently closed due to the pandemic, was legendary for many things: Danny Thomas. Martin & Lewis. A New York Yankees brawl. And, as recent cases illustrate, despite the Copa’s physical demise, the legacy survives in the courtroom if not in a ballroom.
Kayla Pedraza alleged that, while a patron of Copacabana Nightclub, she slipped and fell due to “wetness and ice on the floor” and suffered a severe ankle fracture. The Copa moved for summary judgment dismissing the complaint arguing that Pedraza could not establish a prima facie claim of negligence because she could not identify the cause of her fall or demonstrate that the club had any notice of the alleged unobserved condition. Pedraza argued that the Copa had notice of the recurrent dangerous condition that they created.
Pedraza asserted that on May 28, 2017, she was a patron in the Copa for several hours and observed the club’s employees serving patrons drinks that were permitted to be carried onto the dance floor. She also asserted that patrons routinely spilled drinks onto the dance floor, yet no one was observed inspecting or cleaning spills throughout the night. And Pedraza avowed that she stepped forward onto ice and liquid while on the dance floor, slipped and fell, injuring her ankle.
The Copa contended that inasmuch as Pedraza could not identify the cause of her fall, her claim must fail. Specifically, the club referred to her deposition testimony wherein she testified that she believed she fell on ice and liquid but never observed ice, liquid, or anything on the floor before or after her ll. And that Pedraza’s failure to identify ice, liquid, or any defect/condition on the floor was consistent with the observations of security manager Edwin Hernandez, who inspected the area when he began assisting plaintiff her she fell. Notwithstanding Pedraza’s inability to identify the cause of her fall, the club argued that as neither she nor the security manager observed the alleged condition before or after the fall, she was unable to establish that the Copa had constructive notice of any condition thus summary judgment was warranted. And the club proffered a closed-circuit television recording of the incident depicting Pedraza falling after swaying and losing her balance while talking with other patrons on the dance floor.
In opposition, Pedraza averred that the Copa created the dangerous condition causing her fall by allowing patrons to carry drinks onto the dance floor rather than restricting drinking to the bar or table areas and by failing to have periodic inspections and cleanings of the spills. She further asserted that the club was on actual notice of the recurring condition of customers spilling drinks. And argued that the Copa failed to refute the allegations of negligence and recurring dangerous conditions despite the club’s assertion in its Bill of Particulars that the alleged dangerous condition was open and obvious.
In action for negligence, a plaintiff must prove that the defendant owed him a duty to use reasonable care that the defendant breached that duty and that the plaintiff’s injuries were caused by such breach. A motion for summary judgment may be properly granted when a defendant demonstrates that it did not create or have actual or constructive notice of an alleged defective condition that allegedly caused the plaintiff’s fall.
To constitute constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time before the accident to permit defendants’ employees to discover and remedy it to correct or warn about its existence.]). Additionally, neither a general awareness that a dangerous condition may be present nor observing a condition in another area is sufficient to create a constructive notice.
In the video, Pedraza could be seen standing on the dance floor and repeatedly leaning forward to speak with another patron. Each time, she appeared to be slightly swaying before leaning forward and holding on to the patron before speaking. On her third time leaning forward to speak, she could be observed with one foot on the ground and one foot in the air. As she leaned forward in this manner, again holding on to the other patron, she was seen losing her balance then attempting to regain her balance by placing her foot on the floor but instead trips on the other patron’s foot and falls onto the floor. Despite the attempts of neighboring patrons to break her fall, Pedraza ultimately landed on the dance floor. In the video, no wet substances could be seen on the floor in the vicinity of her fall, despite her bald assertions to the contrary. And Pedraza was silent and failed to address the video footage in any way.
Based upon the admissible evidence submitted, the Court found that the Copa demonstrated that it did not create or have actual or constructive notice of a dangerous condition contributing to Pedraza’s fall and failed to establish a prima facie case. The complaint was dismissed.