Walsh v. Super Value, Inc.

• Decision Date: 22 June 2010
• Citation: 76 A.D.3d 371,904 N.Y.S.2d 121
• Parties: Kimberly L. WALSH, appellant, v. SUPER VALUE, INC., d/b/a Shell Food Mart, et al., defendants third-party plaintiffs-respondents, Image Point, Inc., defendant third-party defendant/second third-party plaintiff-respondent; TC Industrial Painting, Inc., defendant second third-party defendant-respondent, Shell Oil Company, et al., defendants-respondents.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 121

76 A.D.3d 371

Kimberly L. WALSH, appellant,

v. SUPER VALUE, INC., d/b/a Shell Food Mart, et al., defendants third-party plaintiffs-respondents,Image Point, Inc., defendant third-party defendant/second third-party plaintiff-respondent;TC Industrial Painting, Inc., defendant second third-party defendant-respondent,Shell Oil Company, et al., defendants-respondents.

Supreme Court, Appellate Division, Second Department, New York.

June 22, 2010.

Birbrower Beldock & Margolis, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Diane K. Toner], of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Debra A. Adler and Patrick D. Geraghty of counsel) for defendants third-party plaintiffs-respondents.

Sedgwick, Detert, Moran & Arnold LLP, New York, N.Y. (Scott L. Haworth and Nora Coleman of counsel), for defendant third-party defendant/second third-party plaintiff.

Ryan & Conlon, LLP, New York, N.Y. (William F. Ryan of counsel), for defendants-respondents Shell Oil Company and Shell Oil Products Company, LLC.

STEVEN W. FISHER, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

FISHER, J.P.

On this appeal, we are called upon to re-examine a line of authority dealing with the liability of property owners who, by applying wax, polish, or paint to a floor, make it dangerously slippery. We are also presented with the more general but related question of whether a defendant may be held liable for having unknowingly created a dangerous or defective condition on property. We hold that, absent a statute imposing strict liability, a defendant may not be held liable for creating a dangerous or defective condition upon property unless the defendant had actual, constructive, or imputed knowledge of the danger created.

The facts here are largely undisputed.

Dattilo Petroleum, Inc. (hereinafter Dattilo), was the owner of a Texaco gasoline station and convenience store located on Dolson Avenue in Middletown, Orange County. Dattilo leased the premises to Super Value, Inc. (hereinafter Super Value), which ran the business. In 2003, Super Value and Dattilo agreed to convert, or "re-image," the Texaco station to a Shell station. The conversion required, among other things, the re-painting of several areas of the station with colors specified by Shell Oil Company and Shell Oil Products Company, LLC (hereinafter together Shell). Among the areas to be re-painted was the curb outside the convenience store. To effect the conversion, Dattilo and Super Value contracted with Image Point, Inc. (hereinafter Image Point), a company specializing in the conversion of gasoline stations from one brand to another. Image Point, in turn, hired a painting subcontractor, TC Industrial Painting, Inc. (hereinafter TC Industrial). TC Industrial purchased paint from Ameron International (hereinafter Ameron). The paint it used for the curb outside the convenience store was "Americoat 450 HSA Shell Station number 51 RVI dark gray resin with cure" (hereinafter Americoat 450-SS51), a "two part polyurethane" paint. Image Point and TC Industrial would later claim that Shell had required the use of Americoat 450-SS51 paint and that it be purchased from Ameron. Shell, however, claimed that, although it specified that the paint be purchased from Ameron, it gave the contractors a choice of three acceptable paint products, only one of which was Americoat 450-SS51.

On the morning of July 14, 2004, a misty day with a light rain falling, 21 year-old Kimberly Walsh, a licensed practical nurse and office manager on her way to work,stopped at the station's convenience store to purchase water. Upon leaving the store, she slipped on the painted curb and fell, sustaining a torn left meniscus that required two surgeries to repair.

Walsh commenced a personal injury action against Super Value, Dattilo, Image Point, TC Industrial, and Shell. Super Value, Dattilo, and Shell commenced a third-party action against Image Point, which, in turn, commenced a second third-party action against TC Industrial.¹ The defendants each moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court, among other things,granted those branches of the respective motions. Walsh appeals.

In granting the motions, the Supreme Court relied on a long line of authority dealing with slip-and-fall injuries caused by slippery floors. Specifically, the court interpreted a succession of cases as holding that a property owner's application of wax, polish, or paint to a floor, making the floor slippery, will not support a negligence action unless the manner of application was itself negligent ( see e.g. Kociecki v. EOP-Midtown Props., LLC, 66 A.D.3d 967, 888 N.Y.S.2d 135; German v. Campbell Inn, 37 A.D.3d 405, 829 N.Y.S.2d 631; Rodriguez v. Kimco Centereach 605, 298 A.D.2d 571, 571-572, 749 N.Y.S.2d 543; Larussa v. Shell Oil Co., 283 A.D.2d 403, 724 N.Y.S.2d 459; Werner v. Neary, 264 A.D.2d 731, 694 N.Y.S.2d 734; Mroz v. Ella Corp., 262 A.D.2d 465, 692 N.Y.S.2d 156; see also Crawford v. Jefferson House Assoc., LLC, 57 A.D.3d 822, 823, 870 N.Y.S.2d 404; Nelson v. Salem Danish Lutheran Church, 270 App.Div. 1030, 63 N.Y.S.2d 145, affd. 296 N.Y. 870, 72 N.E.2d 608; cf. Murphy v. Conner, 84 N.Y.2d 969, 971-972, 622 N.Y.S.2d 494, 646 N.E.2d 796; Kline v. Abraham, 178 N.Y. 377, 380, 70 N.E. 923).

Walsh argues that these cases do not stand for any such broad proposition. She contends that, instead, they were decided based on a failure of the plaintiff in each case to offer expert evidence sufficient to raise a triable issue of fact as to whether the floor had, in fact, been rendered so slippery as to constitute a dangerous or defective condition. Walsh maintains that, in contrast, the expert evidence she submitted provided information, inter alia, regarding the reduced coefficient of friction of the painted curb as measured against a widely accepted standard ( see ADA Accessibility Guidelines for Buildings and Facilities [ADAAG], § 4.5 [Ground and Floor Surfaces] & Appendix A4.5.1) and therefore clearly raised a triable issue of fact as to whether the application of Americoat 450-SS51 to the curb created a dangerous or defective condition.

Although we agree that the expert affidavit Walsh submitted was sufficient to raise a triable issue of fact as to whether a dangerous or defective condition was created ( cf. Perez v. City of New York, 44 A.D.2d 514, 353 N.Y.S.2d 5, affd. 36 N.Y.2d 657, 365 N.Y.S.2d 848, 325 N.E.2d 164), we do not agree that the cases relied on by the Supreme Court turned exclusively on insufficiency of expert evidence. Rather, the cases stand for the proposition that the application of wax, polish, or paint to a floor in a non-negligent manner will not, standing alone, support a negligence cause of action for making the floor slippery. We think, however, that the question of whether the wax, polish, or paint was in fact applied in a non-negligent mannerdepends, in part, on the knowledge of those who cause the wax, polish, or paint to be applied. Thus, for example, someone who knowingly makes a floor dangerously slipperyby causing wax, polish, or paint to be applied acts negligently and is not shielded by the rule regardless of the manner in which the substance was applied. Indeed, the defendants' knowledge-actual, constructive, or imputed-lies at the very heart of the issues presented in this case, and, more broadly, at the core of most cases involving premises liability.

An owner of property has a duty to maintain his or her premises in a reasonably safe condition ( see Kellman v. 45 Tiemann Assoc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255; Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868), and here that duty included providing a reasonably safe means of ingress and egress to and from the convenience store ( see Peralta v. Henriquez, 100 N.Y.2d 139, 143, 760 N.Y.S.2d 741, 790 N.E.2d 1170; Gallagher v. St. Raymond's R.C. Church, 21 N.Y.2d 554, 557, 289 N.Y.S.2d 401, 236 N.E.2d 632; Backiel v. Citibank, 299 A.D.2d 504, 506-507, 751 N.Y.S.2d 492). The familiar formulation of the law of premises liability is that "[i]n order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence" ( Lezama v. 34-15 Parsons Blvd, LLC, 16 A.D.3d 560, 560, 792 N.Y.S.2d 123; see Fontana v. R.H.C Dev., LLC, 69 A.D.3d 561, 892 N.Y.S.2d 504; Bodden v. Mayfair Supermarkets, 6 A.D.3d 372, 373, 773 N.Y.S.2d 905). A landowner has constructive notice of a dangerous or defective condition on property when the condition is visible and apparent, and has existed for a length of time sufficient to afford a reasonable opportunity to discover and remedy it ( see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774; Davis v. Rochdale Vil., Inc., 63 A.D.3d 870, 870-871, 882 N.Y.S.2d 194; Latalladi v. Peter Luger Steakhouse, 52 A.D.3d 475, 476, 859 N.Y.S.2d 698). Thus, in cases where an owner is not alleged to have created the dangerous or defective...