Lottie v. Edwards-Knox Cent. School Dist.

• Decision Date: 09 January 1997
• Docket Number: EDWARDS-KNOX
• Citation: 235 A.D.2d 678,652 N.Y.S.2d 144
• Parties: , 115 Ed. Law Rep. 58 Forrest R. LOTTIE Sr. et al., Individually and as Parents and Guardians of Dustin T. Lottie, an Infant, Appellants, v.CENTRAL SCHOOL DISTRICT, Respondent. (And a Third-Party Action.)
• Court: New York Supreme Court — Appellate Division

Page 144

652 N.Y.S.2d 144

235 A.D.2d 678, 115 Ed. Law Rep. 58

Forrest R. LOTTIE Sr. et al., Individually and as Parents and Guardians of Dustin T. Lottie, an Infant, Appellants, v. EDWARDS-KNOX CENTRAL SCHOOL DISTRICT, Respondent.

(And a Third-Party Action.)

Supreme Court, Appellate Division,

Third Department.

Jan. 9, 1997.

Preston C. Carlisle, P.C. (Alice Carrouthers, of counsel), Ogdensburg, for appellants.

Fischer, Bessette & Muldowney (Richard F. Hunter, of counsel), Malone, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and CARPINELLO, JJ.

CARDONA, Presiding Justice.

Appeal from an order of the Supreme Court (Demarest, J.), entered December 7, 1995 in St. Lawrence County, which granted defendant's motion for summary judgment dismissing the complaint.

Dustin T. Lottie, a fifth grade student at a school operated by defendant in St. Lawrence County, was injured when he slipped and fell in front of his locker as the result of water which had accumulated on the floor. Lottie caught his chin on the latch of his locker during his fall. Plaintiffs, Lottie's parents, commenced this negligence action for personal injuries sustained by Lottie, and after service of an answer and some discovery, defendant made a motion for summary judgment dismissing the complaint on the ground that plaintiffs failed to demonstrate that defendant had actual or constructive notice of the allegedly slippery condition of the floor. Supreme Court granted the motion and this appeal by plaintiffs ensued.

We affirm. "To establish a prima facie case of negligence in a slip and fall action, plaintiff must demonstrate that the defendant had actual or constructive notice of the condition" (Stoerzinger v. Big V Supermarkets, 188 A.D.2d 790, 591 N.Y.S.2d 257; see, Kovelsky v. City Univ. of N.Y., 221 A.D.2d 234, 634 N.Y.S.2d 1). In order "[t]o 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" (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774; see, Paciocco v. Montgomery Ward, 163 A.D.2d 655, 656, 557 N.Y.S.2d 997, lv. denied 77 N.Y.2d 808, 570 N.Y.S.2d 488, 573 N.E.2d 576). Based upon our review of the record, we find that plaintiffs have presented no proof that defendant had actual or constructive notice of the allegedly slippery condition of the floor.

It is undisputed that it was raining on the day of the accident; children disembarking from the buses were tracking water from the entrance of the building through the first floor hallway and that the accident occurred within 10 to 15 minutes of Lottie's arrival. Lottie's locker was located in the second floor hallway, a...