In Capano v. Moral Foods , Inc, the Appellate Division affirmed the summary judgment dismissal of plaintiff’s personal injury complaint for a slip and fall accident in defendant’s supermarket.
Plaintiff slipped and fell in defendant’s store while shopping. A store surveillance video confirmed that a male customer dropped a container of cottage cheese on the floor at 3:02:40 and that plaintiff fell at 3:03:15, 33 seconds later. Plainitff argued that the store was small and the spill was in the front of the store , therefore that a fact question existed as to whether a store employee should have observed the spill.
The Appellate Division affirmed summary judgment finding that 33 seconds was not sufficient notice and that plaintiff’s fall was ” relatively instantaneous” providing no time for the store to react. The Court also found that the facts did not establish a ” dangerous mode of operation ” case which would have eliminated the requirement of proving notice. The Court found the dangerous condition caused by spillage from a packaged container of cottage cheese was not a foreseeable risk posed by the store’s mode of operation.
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