Anderson v. Klein's Foods, Inc.

139 A.D.2d 904, 527 N.Y.S.2d 897, 1988 N.Y. App. Div. LEXIS 3992

Opinions

— Judgment reversed on the law without costs and complaint dismissed. Memorandum: The evidence is insufficient to prove that defendant had either actual or constructive notice of the slippery condition of the floor. Plaintiff was unable to tell how long the grapes had been on the floor before she fell. When plaintiff entered the store she glanced at the produce area, but she could not see the condition of the floor. As she proceeded down one aisle and up another, she could not see the produce area and could not tell whether anyone was there. After plaintiff fell she saw grapes on the floor, some of which she crushed, and some others farther away, which had been crushed by someone else. From this evidence, any finding that the grapes had been on the floor for any appreciable period of time would be mere speculation. The evidence is just as consistent with a finding that someone had dropped grapes on the floor and had stepped on them shortly before plaintiff fell. Although plaintiff testified that there were very few customers in the store, the aisles blocked her view of the entire store and she walked through only a portion of it.

All concur, except Doerr, J. P. and Davis, J., who dissent and vote to affirm in the following memorandum.