This week we head up to New Rochelle, in Westchester County, New York; it’s the home of Salesian High School. It’s about a ½ drive north from 3rd Avenue in Manhattan, and an average bus ride of about 9 hours northwest from Iona College to Crouse Avenue in Syracuse. Beautiful New Rochelle, sitting right on the water, is nicknamed, “Queen City of the Sound”.
Scenes in Goodfellas were filmed on Alfred Lane. (The house of the parents of Henry Hill’s eventual wife, Karen, is there. Henry goes across the street and pistol whips the neighbor after the neighbor attacked Karen.). The music video for the song “Dance, Dance” by the band Fall Out Boy takes place in the gym of Salesian High School on Main Street. One of the most frightening high school “Ring Days” is conducted annually at The Ursuline School on North Avenue. In 1923, New Rochelle resident Anna Jones became the first African-American woman to be admitted to the New York State Bar. Also,Yankee great, Lou Gehrig, was from New Rochelle.
No murders or mayhem this week. Today we climb the slippery slope of slip-and-fall lawsuits. In 2016, the National Floor Safety Institute estimated that slip-and-falls accounted for more than one million emergency room visits in the United States.
The common perception of easy windfalls for people who fall and get hurt is not reality. That notion is perpetuated by stories about million-dollar awards awaiting those who slip on a banana peel or puddle of water in their local supermarket. Eye-catching headlines that announce “$1.35 M Jury Verdict After Slip and Fall” or “Wal-Mart loses $1M in local slip-and-fall case” do not help the situation. First-year law students are taught that, a person injured because of negligence must show that the injuries were not only the result of the defendant’s actions, but were also preventable through the exercise of reasonable care. In the case of a grocery store accident, placing liability on the store is only permitted if the store was on notice that a hazard existed to provide it with the opportunity to clean the spill. Sounds easy. It’s not. Anyway, let’s head to Shop-Rite on Joyce Road, in New Rochelle. It is September. It is afternoon.
ENTER: Yvonne Brown, a Shop-Rite shopper; Bill, Yvonne’s husband; Tiana, their granddaughter; James Smith, Shop-Rite Assistant Manager; Christian Orozco, another employee.
PLOT: Yvonne, Bill, and Tiana, are shopping at the supermarket. Yvonne slips and falls to the floor. Yvonne sues the supermarket. The supermarket denies responsibility. Here is the testimony:
DEPOSITION TESTIMONY OF YVONNE BROWN
Q: What did you do on the afternoon of September 4?
A: Well, I went with my husband and granddaughter to Shop-Rite to shop for groceries. After I walked through the corridor-like entrance atrium, and passing the pharmacy, I passed through the vegetable and bakery sections.
Q: And what happened next?
A: I remember that, after I passed further into the supermarket, I noticed water on the floor and mentioned it to one of the Shop-Rite employees. Then, almost a half-hour later, I was paying for my things at the register. My husband took the grocery cart out the car, I had a rain-check for something, and I walked into the entrance atrium and entered the pharmacy to pick up my medication.
Q: And then?
A: After I picked up my medication in the pharmacy, I walked out of the pharmacy area, took a few steps and slipped in the water and fell.
Q: What caused you to fall?
A: There was liquid on the floor that I didn’t see. Water on the floor that I did not see. And, after I fell, I was assisted up by a gentleman, who was entering the store when I fell, and by a Shop-Rite employee, James Smith. He told me that the guy was cleaning around here. He was mopping around here.
Q: The water that you saw following your fall, do you know how it got to be on the floor?
A: The worker told me that someone had cleaned — had cleaned the floor and probably forgot that area, forgot to dry that area.
Q: Did you see any workers cleaning that area of the floor while you were inside the store?
A: I didn’t observe it.
Q: Okay. And other than what this worker told you, do you have any personal knowledge as to how that water came to be on the floor?
Q: Do you know how long that water was on the floor prior to your accident?
Q: Do you know of anyone —
YVONNE’S LAWYER: Let him finish.
Q: – – that made any complaints about the water that you fell on – –
A: I don’t know.
Q: At any point prior to your accident?
A: I do not know.
DEPOSITION TESTIMONY OF JAMES SMITH – ASSISTANT MANAGER
Q: What are your job duties?
A: It includes making sure that the store is safe, secure. The store has maintenance staff who report to me, and who are tasked with keeping the store clean and its floors clear of foreign substances.
Q: What do you know about the subject accident?
A: I recall having been told by another Shop-Rite employee that someone had fallen by the pharmacy in the entrance. I went over to Yvonne Brown, saw her husband there with her, and offered my assistance While I was with her, I observed a two feet by two feet area of liquid on the floor.
Q: Please describe the liquid.
A: It was – – it was an area of water not so much pool, but it looked like it was like a trail. So it’s – – looks like somebody went through it with either a carriage or a stroller or something, and it was kind of like – – like a line.
Q: Okay. So you saw tracks from some kind of wheeled thing.
Q: Had anyone been cleaning in that area before the incident?
A: I do not remember whether anyone had been cleaning the floor in the area where Brown fell before she fell, and I don’t remember when that area was last cleaned.
Q: What are the procedures for floor cleaning?
A: Shop-Rite’s standard procedure is for its employees to place warning signs around newly cleaned floors.
DEPOSITION TESTIMONY OF CHRISTIAN OROZCO
Q: What can you tell us about the incident?
A: I don’t specifically recall Brown’s accident, or responding to the scene; but I do recall an older woman speaking with the EMS workers right outside the pharmacy. My duties as a pharmacy technician require me to stand, for most of my shift, by the service counters adjacent to large plate glass windows facing the entrance atrium. In the course of my work, I am constantly on the lookout for any foreign substance on the store floor. Had a four foot by three foot area of water been on the floor outside the pharmacy, I would have seen it, and I would have called maintenance to clean it. There was none.
For Shop-Rite to be held negligent in a slip and fall action, Yvonne had to demonstrate that the store created the condition which caused the accident, or that the store had actual or constructive notice of the condition. To constitute constructive notice, a condition, like the puddle, must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit store’s employees to discover and remedy it. Yvonne failed to carry that burden and the store should be let out of this lawsuit.
Shop-Rite should be held liable for Yvonne’s injuries, because it had both actual and constructive notice of the condition that caused her to slip and fall, in that it failed to take proper measures to inspect, remedy or eliminate the condition. Alternatively, Shop-Rite should be held liable for her injuries, because it created the hazardous condition by improperly mopping the floor, by failing to dry it properly, and by failing to warn and prevent entry into the area of the hazardous condition. The store must answer for its negligence.
Yvonne offers no explanation for failing to support her own recollection of Smith’s statement with competent evidence from either of the two other individuals who were present when Smith came over to the scene, that being Brown’s husband and Christian Orozco. Furthermore, even if the Court were to credit Yvonne’s recollection of Smith’s purported statement, it would be of no import, because it does not constitute competent evidence that ShopRite had actual or constructive notice of the alleged condition.
See you next week.
Here is the case: http://www.courts.state.ny.us/reporter/pdfs/2017/2017_33124.pdf