Walsh v. Super Value, Inc.

76 A.D.2d 371, 904 N.Y.S.2d 121
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 22, 2010
StatusPublished
Cited by10 cases

This text of 76 A.D.2d 371 (Walsh v. Super Value, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walsh v. Super Value, Inc., 76 A.D.2d 371, 904 N.Y.S.2d 121 (N.Y. Ct. App. 2010).

Opinion

OPINION OF THE COURT

Fisher, J.P

On this appeal, we are called upon to reexamine a line of authority dealing with the liability of property owners who, by applying wax, polish, or paint to a floor, make it dangerously slippery. We are also presented with the more general but related question of whether a defendant may be held liable for having unknowingly created a dangerous or defective condition on property. We hold that, absent a statute imposing strict liability, a defendant may not be held liable for creating a dangerous or defective condition upon property unless the defendant had actual, constructive, or imputed knowledge of the danger created.

[373]*373The facts here are largely undisputed.

Dattilo Petroleum, Inc. (hereinafter Dattilo) was the owner of a Texaco gasoline station and convenience store located on Dolson Avenue in Middletown, Orange County. Dattilo leased the premises to Super Value, Inc. (hereinafter Super Value), which ran the business. In 2003, Super Value and Dattilo agreed to convert, or “re-image,” the Texaco station to a Shell station. The conversion required, among other things, the repainting of several areas of the station with colors specified by Shell Oil Company and Shell Oil Products Company, LLC (hereinafter together Shell). Among the areas to be repainted was the curb outside the convenience store. To effect the conversion, Dattilo and Super Value contracted with Image Point, Inc. (hereinafter Image Point), a company specializing in the conversion of gasoline stations from one brand to another. Image Point, in turn, hired a painting subcontractor, TC Industrial Painting, Inc. (hereinafter TC Industrial). TC Industrial purchased paint from Ameron International (hereinafter Ameron). The paint it used for the curb outside the convenience store was “Americoat 450 HSA Shell Station number 51 RVI dark gray resin with cure” (hereinafter Americoat 450-SS51), a “two part polyurethane” paint. Image Point and TC Industrial would later claim that Shell had required the use of Americoat 450-SS51 paint and that it be purchased from Ameron. Shell, however, claimed that, although it specified that the paint be purchased from Ameron, it gave the contractors a choice of three acceptable paint products, only one of which was Americoat 450-SS51.

On the morning of July 14, 2004, a misty day with a light rain falling, 21-year-old Kimberly Walsh, a licensed practical nurse and office manager on her way to work, stopped at the station’s convenience store to purchase water. Upon leaving the store, she slipped on the painted curb and fell, sustaining a torn left meniscus that required two surgeries to repair.

Walsh commenced a personal injury action against Super Value, Dattilo, Image Point, TC Industrial, and Shell. Super Value, Dattilo, and Shell commenced a third-party action against Image Point, which, in turn, commenced a second third-party action against TC Industrial.

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Cite This Page — Counsel Stack

Bluebook (online)
76 A.D.2d 371, 904 N.Y.S.2d 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walsh-v-super-value-inc-nyappdiv-2010.