43 N.Y.2d 898 | NY | 1978
Lead Opinion
OPINION OF THE COURT
Memorandum.
The order appealed from should be reversed, with costs, and the case remitted to Supreme Court, Westchester County, for a new trial. Unlike the situation in Mooney v Turner (35 AD2d 674), the five photographs in this case, the accuracy of which has not been challenged, are sufficiently clear and precise to create an issue of fact as to constructive notice of the defect which is best submitted to and evaluated by the jury. We note that these photographs were taken the day after the accident, that the plaintiff has testified that they are a fair and accurate representation of the scene of the accident as of the time of the accident, and that the hole is in a basement floor. Although reasonable men might well differ on
It is not to be taken that proof of the condition at the scene of an accident such as this (thus permitting an inference as to the duration of the condition) may always be made by the use of photographs. In this case, we cannot say as a matter of law, that these photographs were insufficient for this purpose.
Dissenting Opinion
I dissent and vote to uphold the determinations of the majority of the Appellate Division and that of the trial court that the insufficiency of plaintiff’s proof required dismissal of the complaint at the close of her case.
Although notice would not be an essential element of a cause of action when the hazardous condition, such as a defect in workmanship, had been created by a defendant, or by his agent or employee whose conduct and knowledge are imputable to him,
Here, there was no proof either that defendants or anyone on their behalf created the "defective condition of the floor and threshold” alleged by plaintiff or that actual notice was given to defendants. Thus, as conceded by plaintiff in her brief, "[t]he only issue * * * is whether plaintiff’s evidence [was] sufficient to prove constructive notice.” More specifically, the pivotal issue is whether five photographs in evidence, taken the day after the accident in question and authenticated by testimony that they were fair and correct representations of the area in which and at the time plaintiff fell, were adequate in themselves to establish constructive notice.
Plaintiff having testified that certain photographs accurately represented the condition of the place where and at the time she claims she caught her foot and fell and the description of that place at that time being relevant, there is no question but that those photographs were admissible insofar as they related to that subject (Richardson, Evidence [Prince-10th ed], § 137, pp 109-110). (For this discussion, no opinion need be expressed as to the admissibility of plaintiff’s exhibit "3”, a photograph received over objection and purportedly being a fair and correct representation of the area of the accident but also showing a young man holding what appears to be a yardstick at or near the spot of the fall [see 3 Wigmore, Evidence (Chadbourn rev), § 798; 29 Am Jur 2d, Evidence, § 793; see, also, Photographs-Authentication, Ann., 9 ALR2d 899, 926 et seq.].)
On the other hand, these black and white photographs, unsupported by testimony as to duration, were insufficient per se to establish such an abstract dimension as the length of time the condition portrayed had existed (see Valle v City of
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Cooke dissents and votes to affirm in a separate opinion.
Order reversed, etc.
. It has been stated that under the doctrine of res ipsa loquitur, not applicable here, no notice need be proven (see Dittiger v Isal Realty Corp., 290 NY 492, 494; Griffen v Manice, 166 NY 188, 193, 196; Katz v Goldring, 237 App Div 824; 1 Shearman and Redfield, Negligence [rev ed], § 56; 6 Schwartz, Trial of Accident Cases, § 6041, p 6:21-5; Kramer, Rules of Evidence in Negligence Cases [3d ed], p 35).
. During the oral argument of defendants’ motion to dismiss, the Trial Justice