67 N.Y.2d 836 (1986)

One-Sentence Takeaway: To constitute constructive notice of a dangerous condition, said condition/defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant’s employees to discover and remedy it.

Summary:  Plaintiff was leaving Defendant’s museum and as he was walking down the steps, Plaintiff slipped on the third step and saw a piece of wax paper that came from the concession stand outside of the museum that the museum had contracted to have present.  In his lawsuit against the museum, Plaintiff argued that Defendant should have had constructive notice or actual notice of the dangerous condition presented by the paper on the steps.  The case went to the jury on the theory that Defendant had actual or constructive notice of the dangerous condition presented by the paper on the step.

The jury found for Plaintiff and the appellate division affirmed.

The issue presented to the Court of Appeals was whether the trial court erred by letting the case go to the jury on the theory of actual and/or constructive notice of the dangerous condition.  The Court answered in the affirmative and reversed.

The Court reasoned that there was no evidence whatsoever in the record that Defendant had actual or constructive notice of the paper and the case should not have gone to the jury on that theory.  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 a defendant’s employees to discover and remedy it.  Here, the evidence presented only established that the piece of paper could have been deposited on the stair only minutes or seconds before the accident and any other conclusion would have been pure speculation.  The record contained no evidence that anyone including Plaintiff observed the piece of paper before the accident.  Plaintiff did not describe the paper as dirty or worn which would have provided some indication that it was there for a while.  On the evidence presented, the piece of paper could have been deposited at the scene of the accident only minutes or seconds prior to Plaintiff’s fall.  Under the foregoing, it was pure speculation that Defendant was on actual or constructive notice of the alleged dangerous condition.

Reversed.

REFERENCE DESK

Weisenthal v. Pickman, 153 A.D. 2d 849 (N.Y. App. Div. 1989):

It is well established that in order 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 defendant’s employees to discover and remedy it (seeGordon v American Museum of Natural History, 67 N.Y.2d 836; Lewis v Metropolitan Transp. Auth., 64 N.Y.2d 670).

The case of Gordon v American Museum of Natural History (supra) is clearly dispositive of this matter.  The plaintiff in Gordon was descending the upper level of the entrance steps of the Museum when he slipped on the third step. He claimed that while in midair he saw a “piece of white, waxy paper next to his left foot.”  The Court of Appeals dismissed the complaint finding that the plaintiff had failed to establish “constructive notice of the particular condition that caused his fall.” The court noted that no one, including the plaintiff, had observed the paper prior to the accident, nor had the paper been described “as being dirty or worn, which would have provided some indication that it had been present for some period of time”.  Therefore, the paper could have been on the steps for only minutes or seconds before the plaintiff’s fall.

Taylor v. U.S., 121 F.3d 86 (2d Cir. 1997):

Recently, the New York Court of Appeals reminded us that “[t]he duty of a landowner or other tort defendant . . . is not limitless.” Under New York law, a landowner, who did not create the dangerous condition, is liable for negligence when a condition on his land causes injury only when the landowner had actual or constructive notice of the condition. “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 defendant’s employees to discover and remedy it.”

In constructive notice cases, the plaintiff must prove not simply that the defendant was generally aware of the existence of the dangerous condition, but that the defendant had notice of the “particular condition” at issue.  The issue, then, is what level of “specificity” or “particularity” is contemplated by the rule.

Taylor argues that the district court held her to too stringent a standard of specificity. She claims that the district court required her to prove that the government had notice not merely that the door closer was malfunctioning, but rather that the seal within the closer housing the hydraulic fluid was leaking. Taylor argues that, while a plaintiff is required to show that the defendant had notice of the particular defect that caused the injury, the level of specificity required by the district court created an impossible burden.

In Gordon v. American Museum of Natural History, the plaintiff sued for damages after he slipped on a piece of paper while climbing the stairs to the entrance of the Museum.  He argued that the Museum had constructive notice of the dangerous condition that caused his injury because: (1) Museum employees were generally aware “that litter or some other dangerous condition may be present”; and (2) other bits of paper littered the stairs ten minutes before his fall. Id. at 838. The Court of Appeals held that these circumstances were insufficient to support liability because neither showed that the Museum had constructive notice “of the paper he fell on.”

Under the principles of Gordon, awareness of a general dangerous condition is not enough to charge a defendant with constructive notice of the particular dangerous condition that caused an injury. Constructive notice of a particular condition is inextricably intertwined with the concept of foreseeability. Cf. Masone v. New York, 563 N.Y.S.2d 992, 994 (N.Y. Ct. Cl. 1990) (plaintiffs failed to prove constructive notice of a particular condition to make it sufficiently foreseeable that the condition posed an unreasonable danger to users of state park). In constructive notice cases, when knowledge of a broadly defined, generalized danger is imputed to a defendant, it is less likely that the defendant would reasonably foresee the particular risk of injury sustained by the plaintiff. Cf. Zasada v. Niagara Mohawk Power Corp., 376 N.Y.S.2d 715, 717-18 (App. Div. 1975) (distinguishing earlier New York case and allowing question of foreseeability to go to jury where defendant was more likely to have had constructive notice of particular danger causing injury).

Courts must, therefore, examine the facts of each case to determine whether the plaintiff has proven notice of a dangerous condition at a level of specificity sufficient to support liability. In Gordon, for instance, describing the danger as litter on the stairs was not specific enough. So too, the danger of papers on the stairs was too general. Yet, said the Court, notice that the particular paper upon which Gordon fell was on the steps would have been sufficiently specific. In Gordon, as here, the generalized dangers peculiar to buildings (i.e., hard surfaces to fall on, lofty heights to fall from, slamming doors, etc.) are ordinarily not specific enough to charge the defendant with constructive notice of the particular condition causing injury.

Proving constructive notice that the door was “malfunctioning” is also too general to support liability. There is an infinite number of possible malfunctions to a door (the door sticks, a window was broken, the door handle was missing, the wood was rotten, etc.), and, consequently, an infinite variety of risks of injury. Notice of a malfunction, while concededly more specific than notice of the dangers generally associated with buildings (i.e., hard surfaces, lofty heights, etc.), does not make the particular risk of injury sustained any more foreseeable. In this case, Taylor had to prove that the government had constructive notice of the individual malfunction — the defective door closer, i.e., that the door was slamming.

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