Proof of Lack of Notice of Icy Condition Required

Facts: The employee of a fish market that rented the ground floor in a commercial building slipped and fell on ice on the sidewalk outside the store. He sued the owner of the building and the tenant. He asserted that the tenant and owner were both negligent by allowing the icy condition to exist and that they had actual notice and constructive notice of the hazardous condition. The tenant and owner each asked the court for a judgment in its favor without a trial.

Decision: A New York trial court denied the owner’s and tenant’s request.

Reasoning: The court first addressed the employee’s claim that the tenant and owner had constructive notice of the condition--that is, that the condition existed for such a period of time that they, “in the exercise of due care,” should have recognized and remedied it. The owner argued that it had no liability for the icy sidewalk condition because its lease with the tenant provided that the tenant was responsible for the maintenance of the adjacent sidewalk “including snow and ice removal and cleaning of all debris.” It also stated that it didn’t create the condition or have actual or constructive notice of the icy condition that caused the fall. The owner also pointed out that the employee hadn’t offered any evidence as to the origin, or length of time the ice or snow was on the sidewalk prior to the accident. Thus, said the owner, it would be “pure speculation to find that the condition existed for a long enough time [for the owner] to discover and remedy it.” For its part, the tenant also claimed that it had no actual or constructive notice of the icy condition.

The trial court determined that neither the owner nor the tenant had presented any evidence that sufficiently demonstrated that it was not negligent and/or didn’t create the icy condition or have actual or constructive notice of the slippery condition on the sidewalk. The trial court noted that “an owner of real property, or a party in possession or control thereof, may be liable for a hazardous snow or ice condition existing on the property as a result of the natural accumulation of snow or ice only upon a showing that it had actual or constructive notice of the hazardous condition and that a sufficient period of time elapsed since the cessation of the precipitation to permit the party to remedy the condition.”

To provide 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 defendants to discover and remedy it. Here, the owner and tenant failed to establish that they didn’t have actual or constructive notice of the allegedly icy condition since they didn’t present any evidence as to the condition of the premises or any evidence showing that they lacked constructive notice of the icy condition in the area where the injured employee allegedly fell, said the trial court. To place defendants on constructive notice, the dangerous condition must have existed for a sufficient length of time before the accident as to allow defendants to discover and remedy it. But the owner and tenant in this case didn’t submit any evidence as to how long the icy condition existed prior to the employee’s fall.

Because the owner and tenant couldn’t prove that they lacked constructive notice of the defective condition that allegedly caused the employee to slip and fall, the trial court ruled in favor of the employee.

• Paguay v. Fischel, et al., August 2012