311 F.2d 294 (2nd Cir. 1962), 94, Ferrara v. Sheraton McAlpin Corp.

Docket Nº:94, 27460.
Citation:311 F.2d 294
Party Name:Elizabeth FERRARA, Plaintiff-Appellee, v. SHERATON McALPIN CORPORATION, Defendant-Appellant.
Case Date:December 10, 1962
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 294

311 F.2d 294 (2nd Cir. 1962)

Elizabeth FERRARA, Plaintiff-Appellee,



No. 94, 27460.

United States Court of Appeals, Second Circuit.

December 10, 1962

Argued Oct. 30, 1962.

Theodore H. Friedman, New York City (Jacob Rassner, New York City, on the brief), for plaintiff-appellee.

Jacob L. Rothstein, Brooklyn, N.Y. (Abraham Richmond, Brooklyn, N.Y., on the brief), for defendant-appellant.

Before CLARK, FRIENDLY and MARSHALL, Circuit Judges.

Page 295

MARSHALL, Circuit Judge.

This is an appeal by the Sheraton McAlpin Corporation, defendant below, from a judgment of $7,500 entered in favor of the plaintiff, Mrs. Elizabeth Ferrara, by the United States District Court for the Southern District of New York after a trial before Judge Cashin and a jury. Because plaintiff is a resident of Massachusetts and defendant is incorporated in New York, and because plaintiff's complaint adequately stated a claim in excess of $10,000, jurisdiction is properly founded upon 28 U.S.C.A. § 1332.

Plaintiff brought her action to recover damages for personal injuries sustained on January 26, 1958 when she slipped and fell in a bathtub while a guest in defendant's hotel. Her complaint alleged that the injuries resulted from the negligence of the defendant in permitting a 'foreign and slippery substance,' described at trial as a white powder having the appearance of plaster-of-paris, to accumulate and remain in the bathtub. The attempt of the plaintiff to establish defendant's negligence was based upon her own testimony and that of her two sisters, with whom she shared the hotel room.

The plaintiff testified that when she stepped into the bathtub sometime after 10 a.m., on January 26, 1958, and before she had turned on the water for a shower, 'I stepped something a little pinchy'-- 'it was something kind of sharp' and 'it stuck in the bottom of my foot'-- causing her to slip and hit her head and shoulder against the side of the tub. She further testified that although she always wore her glasses because she could not see without them, she did not wear them when she went into the bathroom on the morning of the accident and had noticed nothing in the bathtub either that morning or at any time after 7 p.m., the prior evening, when she and her two sisters had registered at the hotel.

The plaintiff's sisters testified that they each had noticed a white substance in the bathtub at sometime during the prior evening, that none of them used the bathtub that evening, and that the condition of the bathtub at 10 a.m. on the day of the accident had not changed from what it was the night before. Although both sisters knew of the presence of the white substance in the bathtub, neither the plaintiff nor the hotel was at any time notified of the existence of the condition. One of the sisters testified that shortly after the accident she cleaned out the bathtub and took a shower. Both of the sisters also testified that a metal fixture, variously described as a 'bracket,' 'plate,' 'iron thing,' and possibly 'shower pipe,' was loose from the tile or plaster above the bathtub.

This testimony raised the standard question in a negligence case of whether the defendant had met its duty of exercising due care under all of the circumstances to prevent or remove the accumulation in the bathtub of the white substance which plaintiff alleged caused her to fall and be injured. In sending this question to the jury, the trial judge charged:

'On the question of notice as to the condition of the tub, that notice can either be actual or constructive notice. That is, you can infer from the testimony, from the facts as you heard them, whether or not...

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