PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A CHERRY TOMATO IN DEFENDANT’S STORE; CONSULT THIS DECISION FOR A DISCUSSION OF HOW A DEFENDANT CAN DEMONSTRATE A LACK OF ACTUAL AND CONSTRUCTIVE NOTICE; DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this slip and fall case, determined defendant grocery-store’s motion for summary judgment should have been granted. Plaintiff failed to raise a question of fact about the store’s constructive notice of the presence of a cherry tomato on the floor:

Defendant offered plaintiff’s deposition testimony and the deposition testimony of several of its employees, including the produce manager on duty the day of the fall. Plaintiff recalled in her deposition testimony that she was walking, slipped and fell forward to the ground. She did not know what caused her fall at the time, but afterward when she examined both the bottom of her shoe and the floor, she realized that she slipped on a cherry tomato. Plaintiff did not see the tomato prior to falling and has no knowledge of how long it may have been there. The assistant store manager stated that the store was cleaned every night by an outside company, that he inspected the store every morning when he first arrived as well as throughout the day, and that he did not recall any produce on the floor prior to plaintiff’s fall. The produce manager relayed in his deposition testimony that he had been the produce manager at the subject store for 14 years, that he received training regarding safety concerns and that he had, in turn, trained his associates on matters of safety. Here, defendant’s safety policy with regard to the floor area did not call for any sort of regularly scheduled inspections but rather consisted of directing its employees to be continually vigilant for dropped items — in essence, if you see something, immediately pick it up. The produce manager stated that the cherry tomatoes sold at the store are packaged in a clamshell container with a lid that locked into place. He further stated that he regularly inspects the floors for safety issues, that he was not aware of anyone who stepped on or slipped on produce in his department prior to plaintiff’s fall in 2020, nor had he received any complaints about produce being spilled on the floor. He asserted that the cherry tomato display was approximately 15 to 20 feet from where plaintiff fell. Most importantly, he testified that on the day in question, he inspected the area where plaintiff fell approximately 40 minutes before her fall and did not see any produce on the floor.[FN1] Additionally, he testified that he had not received any complaints that morning about produce on the floor. The foregoing was sufficient to establish defendant’s prima facie entitlement to summary judgment by demonstrating that it maintained the property in a reasonably safe condition, did not create the allegedly dangerous condition that caused plaintiff’s injury and had neither actual nor constructive notice of such condition … . Levitt v Tops Mkts., LLC, 2025 NY Slip Op 04060, Third Dept 7-3-25

Practice Point: Here defendant proved a lack of actual and constructive notice of a cherry tomato on the store floor which allegedly caused plaintiff’s slip and fall. Essentially the store demonstrated the floor is inspected continually throughout the day and the area of the fall was inspected 40 minutes before the fall.