Weisenthal v. Pickman

• Decision Date: 11 September 1989
• Citation: 545 N.Y.S.2d 369,153 A.D.2d 849
• Parties: Phyllis WEISENTHAL, Appellant, v. Morton PICKMAN, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 369

545 N.Y.S.2d 369

153 A.D.2d 849

Phyllis WEISENTHAL, Appellant, v. Morton PICKMAN, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Sept. 11, 1989.

Rappaport & Frost, New York City (Joseph Frost, of counsel), for appellant.

Harold M. Foster, New York City (Edward B. Safran, of counsel), for respondents.

Before BRACKEN, J.P., and EIBER, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Lonschein, J.), entered July 1, 1988, which, upon the defendants' motion made at the close of the plaintiff's case for judgment as a matter of law, is in favor of the defendants and against her dismissing the complaint.

ORDERED that the judgment is reversed, on the law, with costs, and a new trial is granted.

The evidence adduced by the plaintiff was legally sufficient to permit the trier of fact to infer that the defendants owned and had control over a stairway which, toward the end of each week, invariably became littered with several items of debris. The plaintiff's evidence was similarly sufficient to permit an inference that, despite their actual knowledge that garbage was being strewn about on the stairway by the building's occupants during the course of each week, the defendants negligently failed to take the measures which were necessary in order to avoid the creation of the dangerous condition which inevitably resulted. Also, the jury could have inferred that this negligent omission on the part of the defendants was the cause of the plaintiff's fall and her consequent injuries.

The trial court dismissed the plaintiff's action upon the premise that the evidence in question was insufficient to show that, before the occurrence of the accident, the defendants had either actual or constructive knowledge of the existence of the exact item of debris which caused the plaintiff to fall. The court interpreted the case of Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774, as holding that such proof is required. We do not believe that this interpretation is correct.

In the Gordon case, the plaintiff had attempted to impose liability upon a defendant based upon proof that he had slipped and fallen as a result of stepping on a piece of paper. This piece of paper was not dirty or worn, and there was no other evidence from which it could be inferred that the defendant should have learned of its existence prior to the accident (see, Gordon v. American Museum of Natural History, supra, at 838, 501 N.Y.S.2d 646, 492 N.E.2d 774). In light of the particular facts of the Gordon case, where the evidence established that the accident occurred in a crowded, outdoor area (the front steps of the American Museum of Natural History), the Court of Appeals concluded that any finding of fact, other than that the piece of paper upon which the plaintiff slipped had been discarded "only minutes or seconds before" the accident, would amount to "pure speculation" (Gordon v. American Museum of Natural History, supra, at 838, 501 N.Y.S.2d 646, 492 N.E.2d 774).

There is an important distinction to be made between the outdoor setting of the Gordon case and the indoor setting of the case now under review (see generally, 1986 Survey of New York Law, Torts, 38 Syracuse Law Rev 545, 562, n 125 [1987]. Unlike the outdoor public gathering place maintained by the defendant in the Gordon case, the indoor stairwell at issue in the present case could have been swept clean effectively on a daily basis. In the present case, the evidence tends to show that the debris piled up in the defendants' stairwell over the course of days, rather than over the course of minutes or seconds, thus making it a matter of permissible inference, rather than a matter of "pure speculation", to conclude that, if the defendants had taken reasonable precautions in maintaining their premises, the plaintiff's accident would have been prevented.

Another important distinction is that in the present case, there is proof from which the inference could be drawn that the defendants had actual knowledge of a recurrent dangerous condition. The evidence in the present record would have allowed the jury to infer that the particular dangerous condition at issue, i.e., the litter-strewn stairway, reoccurred with complete regularity at weekly intervals, and that the defendants had actual knowledge of this situation. When a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific reoccurrence of that condition (see generally, Hetzel v. Jewel Companies, 457 F.2d 527 [7th Cir.] [applying Indiana law]; see also, Annot., Slip and Fall--Notice, 85 A.L.R.3d 1000, 1007).

Adoption of a rule that the plaintiff in cases such as this must prove that the defendants knew or should have known of the existence of the exact piece of debris which caused the accident would lead to absurd results. If, for example, a plaintiff were to prove that a defendant-landowner negligently allowed the floor of his premises to become dangerous as the result of an accumulation, over the course of several days, of hundreds of cigarette butts, it would be illogical to hold that the plaintiff's case must be dismissed, simply because of a failure to prove that the one particular cigarette butt which caused the accident had been on the floor for a long enough period of time to warrant a finding of constructive notice of its existence. Such a rule would not only be contrary to logic and common sense, it would also be contrary to express statements made by the courts in Gramm v. State of New York, 28 A.D.2d 787, 281 N.Y.S.2d 235, affd. 21 N.Y.2d 1025, 291 N.Y.S.2d 7, 238 N.E.2d 498 on majority opn. at App.Div. and Kelsey v. Port Auth. of N.Y. & N.J., 52 A.D.2d 801, 383 N.Y.S.2d 347, cases which were not overruled in Gordon.

In Gramm v. State of New York (supra), the Court of Claims found that the defendant had permitted a stairway under its control to become "wet, slippery [and] unswept". However, the Court of Claims also found that the plaintiff, who slipped and fell from one of the steps, had failed to prove that there was any litter on the step from which she fell (Gramm v. State of New York, supra, 28 A.D.2d at 788, 281 N.Y.S.2d 235 [dissenting opinion]. The affirmance by the Appellate Division, Third Department, of the Court of Claims' judgment in favor of the plaintiff necessarily reflects a holding that it is unnecessary for a plaintiff to identify the single piece of litter which, out of all the other pieces of litter scattered about a poorly-maintained stairway or floor, was the direct cause of the accident. In the words of the opinion of the majority at the Appellate Division in the Gramm case, supra, at 788, 281 N.Y.S.2d 235, which was adopted by the Court of Appeals, it is unnecessary for the plaintiff to prove "the precise condition of the particular step upon which she fell, as respected [sic ] one or more of the negligent conditions found applicable to the stairway generally". The facts of the Gramm case, unlike those of the Gordon case, cannot be distinguished from the facts of the case now under review, and must be considered controlling.

In Kelsey v. Port Authority of N.Y. & N.J., 52 A.D.2d supra, at 801, 383 N.Y.S.2d 347, the plaintiff proved that a stairway in the defendant's terminal had been littered for 15 to 20 minutes with "cigarette butts, paper cups and wetness" when, as she descended the stairs, she slipped on something which she was "unable to specify". The Appellate Division, First Department, affirmed the verdict in favor of the plaintiff, holding that identification of the precise condition upon which the plaintiff fell was unnecessary. The facts of the Kelsey case are also indistinguishable from the facts of the present case.

In accordance with the foregoing precedent, we...