Paciocco v. Ward

Levine, J. Appeal from an order of the Supreme Court (Smyk, J.), entered November 21, 1989 in Broome County, which denied defendant’s motion for summary judgment dismissing the complaint. Plaintiff Adina Paciocco (hereinafter plaintiff) was seriously injured on February 10, 1985, at about 12:30 p.m., when she slipped and fell in the main aisle of defendant’s department store in the Village of Johnson City, Broome County. The store had opened for business at noon. Plaintiff and her husband subsequently commenced this action against defendant. The complaint and bill of particulars set forth a theory of recovery based upon defendant’s negligence in creating a dangerous condition, namely, wetness upon a highly polished floor surface, and permitting it to remain, and in failing to provide mats or some other nonskid material on the floor. Following discovery through examinations before trial (hereinafter EBTs), defendant moved for summary judgment, attaching excerpts from EBT transcripts which tended to establish either that plaintiff’s fall was not attributable to a slip [656] pery floor or that, in any event, defendant did not have actual or constructive notice of any slippery or wet conditions in the vicinity of the accident. Plaintiff’s papers in opposition consisted also of EBT excerpts, the affidavit of plaintiff and that of a professional engineer as a safety expert. Factually, plaintiff’s opposing papers set forth that some nine inches of snow had fallen in the area the day preceding the accident and that the parking lot and sidewalks adjoining defendant’s store had 2 to 3 inches of snow and ice accumulation. Plaintiff entered the store where there was a rubber mat in the vestibule and a mat placed immediately beyond the vestibule doors as one entered the store proper. The main aisle had a surface of vinyl-type flooring which "was highly polished and wet” from people walking on it and tracking in melting snow and ice. Plaintiff was at a cash register with a shirt she intended to buy, changed her mind and then turned and started down the aisle to return the shirt when she slipped and fell. While on the floor, she observed a puddle of water one fourth to one half of an inch deep underneath and around her. She also observed heavy wax on the floor which was highly polished. Supreme Court denied defendant’s motion for summary judgment. This appeal followed. We reverse. There was absolutely no evidence that defendant created the allegedly dangerous condition causing plaintiff’s fall, either by placing the water on the floor or doing anything improper with respect to polishing the floor. Nor was there any proof that any of defendant’s employees had actual notice of the wet surface of the floor where plaintiff fell. The store had opened only some 30 minutes before the accident and there was no evidence of when the puddle plaintiff described had accumulated within that time frame. The proof plaintiff submitted was insufficient in terms of setting forth facts from which constructive notice could be found (see, Torri v Big V, 147 AD2d 743, 744-745). "To 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 NY2d 836, 837). On virtually identical facts and a similar claim that negligence of a department store was established by proof that it had allowed slush to accumulate inside the store and failed to put down mats, the Court of Appeals affirmed a reversal of the plaintiff’s verdict and dismissal of the complaint on the ground that negligence had not been established, as a matter [657] of law (see, Holmes v Hengerer Co., 303 NY 677, affg 277 App Div 936). The foregoing deficiency of proof was not remedied by the affidavit of plaintiffs expert, a safety engineer, who opined that the failure of defendant to place a mat or carpet down the main aisle of the store was "a departure from customary standards of safety in a public area of a merchantile establishment such as a department store”. Apart from unrelated qualifications and experience as a safety engineer and safety consultant, including work for "the Rockefeller Group” and two construction companies and testifying in the course of his entire career "in approximately 60 [undescribed] cases for both plaintiffs and defendants” as an expert in safety engineering, the sum total of plaintiffs expert’s claimed experience directly relevant to the "customary standards of safety” for department stores, is the statement that "I have also analyzed many accident scenes where people have slipped and fallen on floors, etc., including floors in department stores”. This was an insufficient foundation to establish the expert’s knowledge of an industry-wide safety standard and was, therefore, speculative and lacking in sufficient probative force to create an issue of fact precluding summary judgment (see, Fallon v Hannay & Son, 153 AD2d 95,101-102). Order reversed, on the law, without costs, motion granted, summary judgment awarded to defendant and complaint dismissed. Weiss, Levine and Harvey, JJ., concur; Mahoney, P. J., concurs in a memorandum; Mikoll, J., dissents and votes to affirm in a memorandum.