Gordon v. American Museum of Natural History

• Decision Date: 25 March 1986
• Citation: 67 N.Y.2d 836,501 N.Y.S.2d 646
• Parties: , 492 N.E.2d 774 Douglas GORDON, Respondent, v. AMERICAN MUSEUM OF NATURAL HISTORY, Appellant, et al., Defendants. (And a Third-Party Action.)
• Court: New York Court of Appeals Court of Appeals

Page 646

501 N.Y.S.2d 646

67 N.Y.2d 836, 492 N.E.2d 774

Douglas GORDON, Respondent, v. AMERICAN MUSEUM OF NATURAL HISTORY, Appellant, et al., Defendants (And a Third-Party Action.)

Court of Appeals of New York.

March 25, 1986.

James A. Hamill, New York City, for appellant.

Lawrence K. Katz, Mineola, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 113 A.D.2d 701, 493 N.Y.S.2d 464, should be reversed, with costs, the complaint dismissed and the certified question answered in the negative.

Plaintiff was injured when he fell on defendant's front entrance steps. He testified that as he descended the upper level of steps he slipped on the third step and that while he was in midair he observed a piece of white, waxy paper next to his left foot. He alleges that this paper came from the concession stand that defendant had contracted to have present and which was located on the plaza separating the two tiers of steps and that defendant was negligent insofar as its employees failed to discover and remove the paper before he fell on it. The case was submitted to the jury on the theory that defendant had either actual or constructive notice of the dangerous condition presented by the paper on the steps. The jury found against defendant on the issue of liability. ^* A divided Appellate Division affirmed and granted defendant leave to appeal on a certified question.

There is no evidence in the record that defendant had actual 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 defendant's employees to discover and remedy it (Negri v. Stop & Shop, 65 N.Y.2d 625, 626, 491 N.Y.S.2d 151, 480 N.E.2d 740; Lewis v. Metropolitan Transp. Auth., 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612, affg. on opn. at 99 A.D.2d 246, 249, 472 N.Y.S.2d 368). The record contains no evidence that anyone, including plaintiff, observed the piece of white paper prior to the accident. Nor did he describe the paper as being dirty or worn, which would have provided some indication that it had been present for some period of time (cf. Negri v. Stop & Shop, supra, at p. 626, 491 N.Y.S.2d 151, 480 N.E.2d 740 [broken baby food jars were dirty] ). Thus, on the evidence presented, the piece of paper that caused plaintiff's fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation.

Contrary to plaintiff's contentions, neither a general awareness that litter or some other dangerous condition may be present (see, Bogart v. Woolworth Co., 24 N.Y.2d 936, 301 N.Y.S.2d 995, 249 N.E.2d 771, revg. 31 A.D.2d 685, 295 N.Y.S.2d 785) nor the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall is legally sufficient to charge defendant with constructive notice of the paper he fell...