Negligence: Anderson v. Great Eastern Mall LP

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Appellate Division, Fourth Department

Negligence

Constructive Notice — Burden of Proof

Anderson v. Great Eastern Mall LP
635
Appealed from Supreme Court, Monroe County

Background: The plaintiff seeks damages for injuries he suffered when he slipped on ice and fell in front of the entrance to a store owned by defendant Kaufmann’s Department Store Inc. The plaintiff and his family members, who witnessed the accident, believed the ice formed from water dripping from a nearby drain, from snow melting from the canopy or from snow melting from a nearby snow pile. The defendants also submitted the deposition testimony of their employees, who testified that they observed water coming from the nearby drain and ice accumulation near that drain.

Ruling: The court agrees with the plaintiff that the court erred in granting the parts of the motions for summary judgment dismissing the complaint insofar as the complaint — as amplified by the bills of particulars — alleges the defendants had actual or constructive notice of the dangerous condition and for summary judgment dismissing the cross claims. A plaintiff is not required to prove the defendants knew or should have known of the existence of a particular defect when they had actual notice of a recurrent dangerous condition in that location. A defendant who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of the condition. The defendants failed to establish that they did not have actual or constructive notice of the dangerous condition.

Robert L. Voltz of Cellino & Barnes PC for the appellant, Valerie L. Barbic of Trevett Cristo Salzer & Andolina PC for Great Eastern Mall LP, and James H. Cosgriff III of Petrone & Petrone PC for Kaufmann’s Department Store Inc.