In a recent case, Harrison v. New York City Tr. Auth., the First Department clarified how juries must be instructed on the issue of constructive notice in a slip-and-fall case. There, the court reversed a judgment entered on a $500,000 jury verdict for plaintiff and ordered a new trial on liability.
Plaintiff “slipped and fell on a patch of ice on the yellow tactile warning strip at the edge of the Pelham Bay Park subway station platform in the Bronx, fracturing her left ankle.”
The court held that while there was sufficient evidence for the jury to consider whether defendant had constructive notice of the icy condition, the trial court’s jury instruction on this issue was in error.
The law:
A common carrier is required to exercise ordinary care in maintaining a subway platform. Thus, except where the defendant created the condition, a plaintiff must prove actual or constructive notice of the dangerous or defective condition and that the defendant had “a sufficient opportunity, within the exercise of reasonable care, to remedy the situation” after receiving such notice. In this case, plaintiff was required to show on its prima facie case that the icy condition was dangerous, that such condition was visible and apparent, and had existed for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it.
The trial court instructed the jury, over defendant’s objection, that it had to find that “defendant either knew about the dangerous conditions or circumstances and that would be actual notice or a reasonable person would conclude that such a condition existed, and that would be called constructive notice.”
Citing the New York Pattern Jury Instructions (namely, PJI 2:90 and 2:11A), the court held that this instruction was incorrect, since it:
does not make it clear that in order to find constructive notice, the jury must conclude that the condition was visible and apparent, and that it existed for a sufficient length of time for defendant to have discovered it and taken curative action. While the court later instructed the jury that it also needed to find that defendant failed to use reasonable care “or had a reasonable time to remove the snow or ice but failed to do so,” this element of the instruction is not related to the court’s instructions on notice.
Plaintiff did not present evidence of actual notice, but did “present evidence on the issue of constructive notice sufficient to warrant the jury’s consideration of this issue”. Therefore, the court remanded the case to the trial court for a new trial on liability.
The court proceeded to review the evidence of record, concluding:
Given defendant’s awareness of a recurring condition, the climatological data, and the existence of snow melt put by the Transit Authority on the platform at or about the time of the accident, a jury could reasonably conclude that the earlier snowfall and resultant dripping watery conditions, and freezing temperatures, created an icy condition on the platform and had existed for a long enough period of time to have been discovered and addressed during defendant’s routine maintenance activities.
The court, however, held that there was no need for a retrial on the issue of damages, noting that if on retrial the new jury finds liability, the original jury’s award should stand:
Plaintiff, who was 22 at the time of the accident, was awarded $200,000 for past and $300,000 for future pain and suffering. Her injuries consisted of a comminuted bimalleolar fracture to her left ankle, resulting in two orthopedic surgeries. An award of damages should only be set aside when it deviates materially from what would be reasonable compensation. The evidence adduced as to the nature, extent and permanency of plaintiff’s injuries was sufficient to support the verdict reached and was not excessive.
Judge Freedman dissented, and would have dismissed the case in its entirety since in his view that “plaintiff failed to establish that defendant had actual or constructive notice of the ice on which she slipped and fell.”