In Gomez v J.C. Penny Corp., Inc., the Appellate Division, First Department reversed a denial of summary judgment for defendant J.C. Penny, and directed a judgment in defendant’s favor dismissing the complaint.
In this negligence case,
Plaintiff alleges that she slipped and fell on water near the bottom of an escalator going from the third to the second floor while shopping in a J.C. Penney store. Plaintiff does not contend that defendant created the wet condition, but alleges that it had actual or constructive notice of it through the presence of its employees in the area.
The court held that defendant was entitled to judgment because of the absence of notice:
Defendant established prima facie that it did not have actual notice by presenting evidence that, before the accident, the department supervisor who was responsible for the area was unaware of the alleged wet condition and that the loss prevention officer had received no complaints about the area. The testimony of the department supervisor also demonstrated prima facie that defendant lacked constructive notice of the condition, since she testified that she conducted an inspection of the entire second floor, including the area where plaintiff fell, within the hour preceding plaintiff’s accident, and saw no wet or dangerous condition, except some hangers, which she picked up. While the department supervisor’s testimony wavered as to the exact time that she inspected the “specific” spot where plaintiff fell, her testimony over all was clear that she had started the floor inspection about an hour before the accident and inspected the area near the escalator about one-half hour before plaintiff fell. Further, plaintiff’s own testimony that she had passed by the same area within the hour preceding her accident and had not noticed any water on the floor also demonstrates that the water spot was not “visible and apparent” and did not “exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.
In opposition, plaintiff failed to raise an issue of fact as to actual or constructive notice, “but only speculated that an employee she noticed standing near the bottom of the escalator may have seen the spot of water before plaintiff fell.”