Legal Memorandum: Notice of a Dangerous Condition

Issue: Under New York law, particularly in the Second Department, what are the standards for determining when a defendant is responsible for notice of a potentially dangerous condition?

The controlling case in New York is Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 492 N.E.2d 774, 501 N.Y.S.2d 646 (1986).  In Gordon, the facts show the plaintiff was injured when he fell on a museum’s front entrance steps.  He testified that while he was in midair he observed a piece of white, waxy paper next to his left foot.  He argued that the paper came from a concession stand which had contracted with the museum, and that the museum was negligent in not discovering the paper.  The case went to trial on that theory, the jury found for the plaintiff, and the museum appealed.

New York’s Court of Appeals disagreed.  It held that there was

no evidence in the record that defendant had actual notice of the paper and the case should not have gone to the jury on that theory.  To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.

67 N.Y.2d at 837, 492 N.E.2d at 775, 501 N.Y.S.2d at 647.  It went on to explain:

[N]either a general awareness that litter or some other dangerous condition may be present nor the fact that plaintiff observed other papers on another portion of the steps approximately 10 minutes before his fall is legally sufficient to charge […]

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