Mercer v. City of New York

Decision Date29 January 1996
Citation637 N.Y.S.2d 456,223 A.D.2d 688
PartiesRaymond MERCER, et al., Respondents, v. CITY OF NEW YORK, Appellant.
CourtNew York Supreme Court — Appellate Division

Paul A. Crotty, Corporation Counsel, New York City (Kristin M. Helmers and Deborah R. Douglas, of counsel), for appellant.

Alan Jay Binger, New York City, for respondents.

Before MANGANO, P.J., and O'BRIEN, COPERTINO, PIZZUTO and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Kings County (Jackson, J., at liability trial; Bernstein, J., at damages trial), dated July 2, 1993, which is in favor of the plaintiffs and against it in the principal sum of $29,000.

ORDERED that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

The plaintiff Raymond Mercer was allegedly injured when he slipped and fell in a large puddle of grease which had accumulated on the floor of a garage facility owned and operated by the New York City Department of Sanitation. On appeal the defendant contends that the plaintiffs failed to establish a prima facie case of negligence and that the judgment in their favor must, therefore, be reversed. We agree.

The testimony presented at trial establishes that on the morning of March 21, 1989, the plaintiff Raymond Mercer was employed as a dump truck driver by the New York City Department of Sanitation. At about 6:45 that morning, Mercer reported to a Sanitation Department garage located at Ralph Avenue in Brooklyn to begin a 7:00 A.M. to 3:00 P.M. shift. Upon reaching his locker, Mercer realized that he had left his wallet in his car and he returned outside to retrieve it. Mercer then rushed back inside the garage to report for roll call and allegedly slipped and fell on a large puddle of grease located near the back door. Mercer described the grease patch as about five feet in length and about a car's length in width. There were no witnesses to the accident and no one but the injured plaintiff ever saw the puddle of grease which purportedly caused his fall.

The record further reveals that the Department of Sanitation used the Ralph Avenue garage to store approximately 44 vehicles, including dump trucks and front-end loaders, and that service and maintenance work with grease and oil was frequently performed on these vehicles. Moreover, the supervisor of the garage, Michael Gennardo, admitted that "[a]s a rule", oil would leak from the parked vehicles overnight and, thus, the garage floor had to be cleaned every morning after the vehicles pulled out of the garage for the day, which customarily occurred at 7:30 A.M. During the morning cleaning, salt and sand would be spread on the floor to absorb oil and grease, and would then be swept up. Explaining why the clean-up was not done until 7:30 A.M., Gennardo noted that the garage floor could not be properly cleaned while the vehicles were parked inside. Gennardo further maintained that a grease patch of the size which allegedly caused Mercer's fall would only exist at locations where a vehicle was being serviced by mechanics, who cleaned up any resulting spills upon completing their work.

The court denied the defendant's motion, made at the end of the plaintiffs' case, to dismiss the complaint for failure to establish a prima facie case. At the conclusion of the liability phase of the trial, the jury returned a verdict finding the defendant 75% at fault in the happening of the accident. The defendant now urges this court to reverse the liability verdict and dismiss the complaint, contending that the plaintiffs failed to establish a prima facie case of negligence. The defendant argues that there was no evidence that it had actual or constructive notice of the large puddle of grease which allegedly caused Raymond Mercer's fall, and, consequently, that there was no evidentiary basis upon which the jury could have reasonably inferred that this particular condition had been present on the floor for a sufficient length of time to have required the defendant to have remedied it prior to the commencement of the 7:00 A.M. to 3:00 P.M. shift. In reply, the plaintiffs assert that notice of the existence of the puddle of grease was not required because Gennardo's admission that the parked Sanitation Department vehicles generally leaked oil and grease overnight was sufficient to demonstrate that the defendant created the dangerous condition which caused Raymond Mercer's accident. We agree with the defendant's contention that the facts of this case, even when viewed in the light most favorable to the plaintiffs, are insufficient to establish any negligence on the part of the defendant.

It is well settled that the existence of a patch of oil or a slippery foreign substance on a floor does not, in and of itself, give rise to a cause of action sounding in negligence (see, Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 250, 472 N.Y.S.2d 368, affd. 64 N.Y.2d 670, 671, 485 N.Y.S.2d 252, 474 N.E.2d 612). To the contrary, the plaintiff must establish that the oil or foreign substance was present "under circumstances sufficient to charge the defendant with responsibility therefor; in other words, to prove either that defendant had knowledge of the alleged dangerous condition, either actual or constructive, or that it caused the condition to be created by its own affirmative act" (Lewis v. Metropolitan Transp. Auth., supra, at 250, 472 N.Y.S.2d 368, quoting Donohoe v. Great Atlantic & Pacific Tea Co., 277 App.Div. 739, 741, 103 N.Y.S.2d 406). Accordingly, "[e]xcept in cases where the defendant created the condition, thus constituting actual notice to establish a prima facie case, a plaintiff must prove actual or constructive notice of the dangerous or defective condition and a reasonable time within which to correct or warn about its existence" (Lewis v. Metropolitan Transp. Auth., supra, at 249, 472 N.Y.S.2d 368).

The requirement that actual or constructive notice be given serves to ensure that the property owner has a sufficient opportunity, within the exercise of reasonable care, to remedy the situation (see, Madrid v. City of New York, 42 N.Y.2d 1039, 399 N.Y.S.2d 205, 369 N.E.2d 761; Lewis v. Metropolitan Transp. Auth., supra ). However, an examination of the evidence here fails to demonstrate that such notice was given. Although the plaintiffs assert that the defendant created the dangerous condition which caused Raymond Mercer's fall, and thus had actual notice of its existence, no proof that the defendant created the grease puddle through the affirmative acts of its employees was presented. To the contrary, Gennardo's uncontradicted testimony showed that large grease spots of the type which caused Raymond Mercer's fall would be created only when service or maintenance work was performed on the vehicles. Yet, the record contains no indication that such work was performed near the time of the plaintiff's fall, and it is undisputed that the mechanics who performed service and maintenance work ordinarily cleaned up the oil and grease spills caused by this work. Furthermore, the fact that the vehicles stored in the garage regularly leaked oil overnight does not establish that the defendant created the large puddle of grease which caused Raymond Mercer's fall. In fact, at best the record merely supports the conclusion that leaked oil would accumulate...

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