OPINION OF THE COURT
On this аppeal, 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 fоr creating a dangerous or defective condition upon property unless the defendant had actual, constructive, or imputed knowledge of the danger created.
Dattilo Petroleum, Inc. (hereinafter Dattilo) was the owner of a Tеxaco 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 agrеed 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 (herеinafter 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 Amеricoat 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.
In granting the motions, the Supreme Court relied on a long line of authority dealing with slip-and-fall injuries caused by slippery floors. Sрecifically, the court interpreted a succession of cases as holding that a property owner’s application of wax, polish, or paint to a floor, making the floor slippery, will not support a negligence action unless the manner of application was itself negligent (see e.g. Kociecki v EOP-Midtown Props., LLC,
Walsh argues that these cases do not stand for any such broad proposition. She contends that, instead, they were decided based on a failure of the plaintiff in each case to оffer expert evidence sufficient to raise a triable issue of fact as to whether the floor had, in fact, been rendered so slippery as to constitute a dangerous or defective condition. Walsh maintains that, in contrast, the expеrt evidence she submitted provided information, inter alia, regarding the reduced coefficient of friction of the painted curb as measured against a widely accepted standard (see ADA Accessibility Guidelines for Buildings and Facilities [ADAAG] § 4.5, Appendix A4.5.1, 28 CFR part 36, Appendix A [Ground and Floor Surfaces]) and therefore clearly raised a triable issue of fact as to whether the application of Americoat 450-SS51 to the curb created a dangerous or defective condition.
Although we agree thаt the expert affidavit Walsh submitted was sufficient to raise a triable issue of fact as to whether a dangerous or defective condition was created (cf. Perez v City of New York,
An owner of property has a duty to maintаin his or her premises in a reasonably safe condition (see Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872 [1995]; Basso v Miller,
“[i]n order fоr a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the cоndition or had actual or constructive notice of its existence” (Lezama v 34-15 Parsons Blvd, LLC,16 AD3d 560 , 560 [2005]; see Fontana v R.H.C. Dev., LLC,69 AD3d 561 [2010]; Bodden v Mayfair Supermarkets,6 AD3d 372 , 373 [2004]).
A landowner has constructive notice of a dangerous or defective condition on property when the condition is visible and apparent, and has existed for a lеngth of time sufficient to afford a reasonable opportunity to discover and remedy it (see Gordon v American Museum of Natural History,
On the other hand, where liability is predicated on the owner’s creation of a dangerous or defective condition, it has
Here, each of the defendants was responsible, either directly or vicariously, fоr the application of Americoat 450-SS51 to the curb. There was evidence that Shell directed the use of that paint; Dattilo and Super Value, the owner and lessee respectively, contracted for the repainting required for the conversion of the gasoline station; Image Point accepted the contract to convert the station and brought in TC Industrial, the painting subcontractor, which purchased and actually applied the paint. However, Dattilo, Super Value, Image Point, and TC Industrial submitted evidence establishing prima facie that they did not know, or have reason to know, that Americoat 450-SS51 paint, which was distributed by Ameron and approved for use by Shell, was or might be dangerously slippery when applied to a curb, or know of any other accidents related to the application of Americoat 450-SS51. And none of these defendants had knowledge of
In contrast, Shell failed to establish its prima facie entitlement to judgment as a matter of law. Although therе was evidence that Shell required the use of Americoat 450-SS51, and Shell itself admitted that it specified that paint as one of three acceptable products, it offered no evidence regarding its own knowledge of the characteristics and properties of the paint, and, unlike the other defendants, made no showing of a lack of knowledge as to any other accidents involving the paint it designated for use. Accordingly, that branch of Shell’s motion which was for summary judgment dismissing the complaint insofar as asserted against it should have been denied regardless of the sufficiency of the plaintiffs papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr.,
Shell’s remaining contention is without merit.
Accordingly, the order is modified, on the law, by deleting the provision thereof granting that branch of the motion оf the defendants Shell Oil Company and Shell Oil Products Company, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from.
Balkin, Hall and Austin, JJ., concur.
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Shell Oil Company and Shell Oil Products Company,
Ordered that one bill of costs is awarded to the defendants Dattilo Petroleum, Inc., Super Value, Inc., and Image Point, Inс., appearing separately and filing separate briefs, payable by the plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendants Shell Oil Company and Shell Oil Products Company, LLC.
Notes
Neither the manufacturer nor Ameron was named as a defendant in any of the actions.