This was originally published on the SGR Blog.
Was Owner Liable for Personal Injury Claimed?
The “storm in progress” rule protects real property owners from sidewalk-related “slip and fall” claims until a reasonable amount of time after rain or snow abates. But, as a recent case illustrates, different rules apply where the weather-related accident takes place inside the building while it is raining outside.
Woon Yin Kwan resides at 20 Confucius Plaza located in New York County. The building is owned by Chinatown Apartments, Inc. and managed by Tudor Realty Services Corp.
An accident occurred on a rainy day when Kwan and her daughter, Kate Lee, exited a car in front of the premises at approximately 10:15 a.m. They walked through the first set of doors, a vestibule area, and a second set of doors that led to the lobby. They proceeded towards the elevators. Kwan and Lee were each holding an umbrella. Lee was also wheeling a suitcase.
Surveillance footage showed that Lee entered the elevator first and Kwan followed. Upon entering the elevator, Kwan slipped and fell. Two other people were in the elevator when Kwan fell. The video footage at the 4:20 mark showed Kwan falling in the exact spot where Lee had wheeled her suitcase into the elevator moments before the accident.
Kwan testified at a deposition that she did not recall whether there were any mats or rugs on the lobby floor after the second set of doors, and further testified that she noticed that the lobby floor was wet. Kwan and Lee each testified that they saw no warning signs or mats in the premises when it was raining. Lee additionally testified that she did not see any mat in the vestibule, but that she did see a small piece of carpet after the second set of doors. Lee testified that, after walking through the second set of doors into the lobby area, she saw a small mat or rug on the floor.
Leroy Fraser, an employee of Park Avenue Security for 28 years, was the site supervisor on the day of the incident. Fraser testified that there was always carpet out when it was raining. To his knowledge, the carpet was out the day of the incident. He did not recall whether there were mats inside the elevator.
Chinatown and Tudor also provided photographs confirming Fraser’s testimony regarding the extensive carpeting in the lobby. Drew Moschela, Tudor’s site manager on the day of the incident, testified that he was not aware of any complaints regarding the accumulation of water on the lobby floor. Shalamar Clarke, the insurance manager for Tudor, testified that before the accident no one had complained about water accumulating in the lobby area of the elevator.
To establish liability in a slip-and-fall case, a plaintiff must prove that the defendant either created or had notice of the condition. Here, Kwan was unable to do so.
Chinatown and Tudor established as a matter of law that they did not create the wet-floor condition. They provided video evidence showing that Kwan fell in the exact spot where, mere moments before the accident, Kate Lee had been walking and rolling her suitcase. And contended that the water on the floor had been tracked from Lee’s feet and suitcase moments before the accident. Kwan offered no countervailing evidence. And Chinatown and Tudor did not have obligation to provide a constant remedy if water was tracked into the building by Kate Lee immediately preceding Kwan.
Chinatown and Tudor also lacked actual notice of the floor being wet. The evidence demonstrated that they were not notified of the alleged wet floors or otherwise had actual notice.
Nor did Chinatown and Tudor have constructive notice. 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 the owner’s employees to discover and remediate. Kwan did not provide any evidence to establish how long the floor was wet before the accident. The record did not show that anyone else observed the floor being wet prior to the accident. Clarke testified that before the accident that no complaints had been made about water accumulating in the lobby area or elevator. The absence of any complaints regarding the dangerous condition prior to the accident reinforced that Chinatown and Tudor did not have constructive notice.
The Court dismissed the complaint.