This was originally posted on the SGR Blog.
When it rains it pours. And sometimes litigation en(sues).
Janice Kasni lived at 30 Lincoln Plaza located on 30 West 63rd Street. Shortly after midnight, Kasni returned from an evening out, when she slipped and fell on the floor of the lobby. It had rained for much of day before the accident and long brown rugs had been placed from the doors to the lobby to the elevator bank.
When Kasni entered the building, she stepped onto the rug in front of the door and then headed left towards a couch that was near the entrance—and stepped off the rug and slipped on the floor.
Kasni testified at her deposition that she had taken up to two steps when both feet went out from under her and she fell backwards, flat onto her back. Prior to stepping on to the floor, she saw “the marble floor, that’s all.” Kasni did not notice any water or wet spots. Only after coming in from the rain, falling and lying on the floor, did Kasni first notice water on the marble floor. The water she saw was clear and was like a small puddle. Kasni was unable able to provide dimensions of the puddle and did not know how long the puddle had been there.
Kasni sued the condominium, the sponsor and the managing agent. All moved for summary judgment. And argued that there was a lack of notice, both actual and constructive. Further, by placing the mats through the lobby, they had fulfilled their duty during inclement weather.
Kasni argued that the mats were not enough to fulfill the duty during inclement weather as they did not extend to the couches. And, since “New York City had been pelted by a torrential downpour of almost biblical proportions”, defendants had constructive knowledge that the lobby would be wet from people and dogs entering.
For defendants to be liable, Kasni had to establish that a dangerous or defective condition existed at the time of the injury and that the defendants either created the condition or had actual or constructive notice of the alleged dangerous or defective condition and had time to effect a remedy. Defendants had the initial burden of making a prima facie showing that they did not create the dangerous condition and did not have actual or constructive notice of its existence.
Kasni did not argue that defendants created the condition, nor did she argue that they had actual knowledge of a wet floor. Kasni argued instead that there was a question of fact “whether or not defendants exercised the level of care needed in this case in light of the unusual weather conditions”. And that defendants had constructive knowledge of the wet conditions due to the “torrential downpour of almost biblical proportions” that had “pelted” New York.
The Court found that defendants met their prima facie burden that they employed reasonable maintenance measures to address the wet conditions, by laying out mats from the front door until the elevator bank. And defendants were not required to provide a constant ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during the storm.
Kasni’s argument that a mat should have been placed in front of the couch was also found to be without merit, Defendants were not required to cover all of the floors with mats, or continuously mop up all moisture from the storm. The law imposed only the obligation to take reasonable measures to remedy a hazardous condition. And the failure to take any particular precaution which transcended that standard, even if customary, could not serve as a basis for liability.
A general awareness of a dangerous condition that may be present in the general area was not necessarily legally sufficient to charge them with constructive notice of the actual spot where Kasni fell. And the fact that it was raining and water was being tracked in did not constitute notice of a dangerous situation. Thus, defendants established their prima facie entitlement to summary judgment—and the burden of proof switched to Kasni to raise a genuine issue of fact. However, Kasni did not know why or what caused her to fall. She was looking down and did not see any condition on the floor, including water. Defendants were entitled to summary judgment as a matter of law because Kasni was unable to identify the defect that caused her injury.
There was neither active notice, in the form of complaints received, nor constructive notice of a hazard sufficiently visible as to permit discovery and remedy by defendants. And, in the absence of proof as to how long the condition existed, no inference could be drawn that defendants had constructive notice of a dangerously wet floor.
Kasni’s own testimony established that the water on which she slipped was not visible and apparent and could not provide constructive notice. Despite looking at the floor where she was walking, it was not until after Kasni fell that she was able to see the wet spots on the floor, which she described as clear droplets in a small area. Here, the Court found that the record also showed that defendants met their prima facie burden of showing lack of notice through Kasni’s testimony that she did not see the water before she fell. The water was not visible and apparent. To read the full case, click here.