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NY: Actual Knowledge of Ongoing Hazardous Conditions Constitutes Constructive Notice for Each Recurring Incident

Lowe v. Spada, 282 A.D. 2d 815 (N.Y. 3rd Dept. 2001)

NY: Tort Law

Student Contributor: Adam Gardin

Facts: Plaintiff commenced an action against defendants for failing to timely commence a personal injury action against the maintenance company responsible for cleaning the bathroom where she suffered a slip-and-fall. Defendants claimed that plaintiff would not have succeeded in the personal injury action because “she could not have proven that [the maintenance company] created a dangerous condition or had notice of the condition in time to remedy it.” Plaintiff countered by stating that she would have been able to prove that the “maintenance company had notice of a recurring hazardous water puddle…where she tripped.” The Supreme Court relied on the First Department’s ruling in O’Rourke v. Williamson, Picket, Gross (260 A.D. 2d 260) and granted defendant’s motion for summary judgment. On appeal, the Appellate Division reversed, citing Third Department current standards of law.

Issue: Can liability be "predicated upon the theory of a recurring dangerously slippery condition routinely left unaddressed absent any evidence that the floor was actually slippery before [the injured party] walked into the building on the day of the accident?”

Rule: The Court held that “when a property owner has `actual knowledge of the tendency of a particular dangerous condition to reoccur, [that owner] is charged with constructive notice of each specific recurrence of that condition.” In this case there had been recurring water hazards in the area which the maintenance company failed to address. Therefore, there was sufficient evidence of issues of triable fact to defeat summary judgment in the underlying attorney malpractice case. Thus, the Court reversed the Supreme Court’s ruling.

Lesson: Courts have established that “defendants may be found liable for injuries resulting from recurrent, dangerous conditions.” 

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Posted in: But for-Proximate Cause, New York, Torts/Personal Injury