Walsh v. Super Value, Inc.

• Court: New York Supreme Court Appellate Division
• 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.
• Decision Date: 22 June 2010

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.

904 N.Y.S.2d 123

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.

76 A.D.3d 372

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.

76 A.D.3d 373

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,

904 N.Y.S.2d 124

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,

76 A.D.3d 374

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...