Gordon v. American Museum of Natural History

• Decision Date: 05 September 1985
• Citation: 113 A.D.2d 701,493 N.Y.S.2d 464
• Parties: Douglas GORDON, Plaintiff-Respondent, v. The AMERICAN MUSEUM OF NATURAL HISTORY, Defendant-Appellant, The City of New York et al., Defendants. ARA SERVICES, INC., Third-Party Plaintiff, v. YUM YUM HOT DOG, INC., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 464

493 N.Y.S.2d 464

113 A.D.2d 701

Douglas GORDON, Plaintiff-Respondent, v. The AMERICAN MUSEUM OF NATURAL HISTORY, Defendant-Appellant, The City of New York et al., Defendants.

ARA SERVICES, INC., Third-Party Plaintiff, v. YUM YUM HOT DOG, INC., Third-Party Defendant.

Supreme Court, Appellate Division,

First Department.

Sept. 5, 1985.

L.K. Katz, for plaintiff-respondent.

J.A. Hamill, New York City, for defendant-appellant.

Before MURPHY, P.J., and FEIN, MILONAS, KASSAL and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County, entered on December 18, 1984, which, inter alia, found in favor of plaintiff against defendant The American Museum of Natural History on the issue of liability, is affirmed, without costs or disbursements.

Plaintiff commenced this action to recover damages for personal injuries sustained when he slipped and fell on the front steps of defendant The American Museum of Natural History. On the day of the accident, August 11, 1981, plaintiff, who was then twenty-seven years old and a school bus driver for Pierce Coach Lines, was accompanying a group of sixty children and nine counselors from the Belrose YMCA in Queens on an excursion to the Museum. Plaintiff testified that there were people sitting on the steps eating lunch and reading newspapers. He also noticed tissues and other papers strewn about. A food concession stand, operated by ARA Services, Inc. at the behest of the Museum, was located on a plaza midway up and to the right of the front steps. Nearby were six or seven tables at which people were observed to be having lunch. Use of the tables and chairs was not restricted to persons purchasing food from ARA.

At approximately 12:00 p.m., plaintiff went into the Museum's main lobby through a revolving door on the front main entrance. When the guard directed plaintiff and his group to the entrance at the bottom and to the side of the front steps, they then exited through a revolving door just to the left of the one that they had entered. According to plaintiff, he was the last of the group of seventy people to descend the stairs. As he reached the third step, his foot slipped underneath him, and he "came up in the air with a piece of paper" next to his left foot. Plaintiff described the object in question as a white, waxy piece of paper. On cross-examination, plaintiff stated that he did not see the paper before he fell. Defendant contends that since plaintiff was the only witness to testify about the piece of paper on which he allegedly slipped, the jury's verdict was against the weight of the evidence. However, there was no proof to the contrary. No one contradicted plaintiff's assertion. One of the counselors, Ruth Portnoy, who testified that she heard a noise and turned around to observe plaintiff in mid-air, merely denied having noticed anything on plaintiff's shoe or near him when he fell. Police Officer Mohrmann, another witness relied upon by defendant, also failed to see any debris on the steps, but his observation occurred some fifteen or so minutes after the incident. Under these circumstances, the jury, confronted with a matter of credibility, was not unwarranted in accepting plaintiff's account of what had transpired.

Defendant's second argument relates to whether plaintiff succeeded in demonstrating that the former possessed actual or constructive notice of the debris on the steps. (See Madrid v. City of New York, 42 N.Y.2d 1039, 399 N.Y.S.2d 205, 369 N.E.2d 761. In that connection, viewing the proof in a light most favorable to plaintiff and according plaintiff the benefit of every reasonable inference, as we are required to do, it cannot be said as a matter of law that the evidence was inadequate to permit the jury to determine that defendant knew or should have known that a dangerous condition in the form of refuse existed on the steps of the Museum at the time that plaintiff was injured. (See Negri v. Stop and Shop, Inc., 65 N.Y.2d 625, 491 N.Y.S.2d 151, 480 N.E.2d 740.)

The record clearly indicates that the Museum had contracted with ARA to provide food and drink at an outdoor snack bar in a plaza immediately adjacent to the main steps leading to the front entrance of the building. Moreover, the Museum's employees admitted that they were aware that people regularly congregated on the front steps for the purpose of, among other things, eating their lunch and reading. Defendant also recognized that the number of persons who did so was at its highest peak during the normal lunch hour of 12:00 noon to 1:00 p.m. In addition, the Museum acknowledged that papers, food and other litter were scattered about on the steps on a continuing basis and that this constituted a dangerous condition which could cause persons to slip and fall. Indeed, in order to minimize the hazard, the Museum assigned individuals to clean the steps and the surrounding area and to chase people who were eating on the steps. The fact that plaintiff may not have been able to provide particulars with respect to the specific piece of paper upon which he slipped is not dispositive. (Gramm v. State of New York, 28 A.D.2d 787, 281 N.Y.S.2d 235, aff'd 21 N.Y.2d 1025, 291 N.Y.S.2d 7, 238 N.E.2d 498). So long as plaintiff was able to show that defendant was aware of the debris problem and was, therefore, under a landowner's duty to maintain its property in a reasonably safe condition by removing that debris (See Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868), the jury was authorized in deciding that the Museum, by giving its cleaner a lunch break between noon and 1:00 p.m. and not assigning a replacement, negligently left the litter-prone main steps unpoliced and unmaintained during a crucial peak period. Indeed, the jury could conclude that the Museum was the cause of the hazardous condition as a result of its desire to "look busy like the Metropolitan Museum. They wanted people on the steps." Consequently, there was certainly more than sufficient proof to support a finding that the Museum had constructive, if not actual, notice of the dangerous condition of the steps.

All concur except MURPHY, P.J., and KASSAL, J., who dissent in a memorandum by KASSAL, J., as follows:

I dissent and would reverse the judgment and dismiss the complaint.

The issue presented is whether there are circumstances when a fall in a public area, resulting from a foreign substance, may constitute negligence in the absence of some proof of notice, actual or constructive, on the part of the owner or operator of the premises.

The action was brought to recover for personal injuries sustained when plaintiff slipped and fell on wax paper on the front steps of The American Museum of Natural History. In my view, the proof at trial failed to establish a prima facie case in that there was no evidence to establish actual or constructive notice of the claimed dangerous condition. The determination of this question depends upon whether the defendant had notice and a sufficient opportunity, in the exercise of reasonable care, to correct it. (Lewis v. Metropolitan Trans. Auth. 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612.)

In the summer of 1981, ARA Services, Inc., which had previously operated an indoor cafeteria in the museum, was granted the concession to operate an outdoor snack bar, pursuant to an agreement with the museum, whereby it sold hot dogs, yogurt, fresh fruit, canned soda, ice cream and potato chips. This was done at a patio adjacent to the main steps leading to the front entrance. The outdoor food service was established as a result of a decision by the museum officials, who desired to make the museum "look busy like the Metropolitan Museum. They wanted people on the steps." There was testimony at trial that people frequently congregated and ate on the front steps and that museum officials were aware of this situation and the need to keep the steps clean to avoid possible injury to persons. As a result, guards were instructed that no one was to sit or eat on the steps and an employee was assigned to clean the front steps between the hours of 8:00 AM and 4:45 PM. The cleaner was at lunch between 12:00 noon and 1:00 PM, admittedly the time of day when there was the greatest concentration of people at the front of the museum.

The accident occurred on August 11, 1981. Plaintiff, a 27 year old bus driver, had driven a bus and accompanied a group of 60 children and 9 counsellors from a YMCA day camp, on a field trip to the museum. After arriving at the museum at 11:30 AM, the group went to a picnic area for lunch, following which they prepared to...