New York

Last Thursday, the Appellate Division, Third Department in Black v. Kohl's Dept. Stores, Inc. held that general awareness of that a dangerous condition may be present on its premises  might be enough to hold a premises owner liable.  The case concerns a subset of constructive notice -- i.e., an unsafe recurring dangerous condition.

The plaintiff claimed that she caught her foot on a purse that was lying on an aisle in the defendant's store.  The defendant proffered evidence that an employee inspected the floor at 3:00 p.m. and that there was no merchandise on the floor at that time.  The plaintiff alleged that the accident occurred between 3:15 p.m. and 4:00 p.m., and an accident report indicated that emergency medical services received a call regarding the injury at 3:48 p.m.

The Third Department held that the plaintiff raised a material question of fact as to whether the defendant had constructive notice of a recurring condition regarding its merchandise.  The odd part about the decision is that the evidence does not speak to the fact that there was a recurring dangerous condition that  regularly went unaddressed.

The Court pointed out that one employee "acknowledged that he had seen merchandise, including handbags, on the floor in the store and that customers would commonly knock merchandise onto the floor.  The Court pointed to another employee's affidavit who stated that the "plaintiff's accident occurred in an aisle near a price checker and that customers would occasionally leave clothing hanging near the price checker or on shelves nearby, causing employees to more frequently attend to that aisle and the merchandise misplaced therein."  Based on this evidence, the Court concluded that the plaintiff raised a material issue of fact to defeat the defendant store's summary judgment motion.

Justice Mecure dissented, noting that the Majority's holding on these facts creates a precedent that expands the recurring unsafe condition beyond manageable bounds.  In my opinion, Justice Mecure hits the nail on the head.  The Majority's rule ignores that the plaintiff failed to demonstrate that the defendant had actual notice of this alleged unsafe recurring condition.

(Note: The law firm for which I work represented the defendant in this matter.  I had no involvement in the case, however)