In Velocci v Stop & Shop, the Appellate Division, First Department provided a notable reminder of the importance of inspection efforts to prevent liability for slip and fall accidents. There, the plaintiff fell on a puddle of water on the floor in front of an ice machine in a supermarket. The plaintiff and his wife had shopped at the supermarket frequently and never saw or complained of water in the area prior to his fall. The plaintiff also did not see the puddle until after he fell. Ultimately, the plaintiff testified that he did not know where the water came from.

The supermarket’s witness had seen drops of water on the floor in front of the ice machine on one occasion, but could not remember whether there had been any prior accidents. According to the supermarket’s records, a porter had inspected the area where the plaintiff fell shortly before the accident.

The defendants moved for summary judgment, arguing that they had no actual or constructive notice of the condition. Indeed, the water was not visible and not on the floor long enough for employees to clean it before the plaintiff’s fall. Defendants submitted an affidavit from the porter who noted that she inspected the area 30 minutes before the accident and did not see water on the floor.

Plaintiff opposed the motion with two affidavits claiming that he and his wife never saw mats or carpets on the floor in front of the freezer and would notice water accumulate after bags of ice were left on the floor. Plaintiff also submitted expert affidavits which claimed that defendants failed to address a long-term water issue from the replenishment of ice and that it was custom and practice in the industry to place rubber cones and an absorbent mat on the floor in front of such machines because water accumulates when bags of ice are placed on the floor.

The trial court granted defendants motion for summary and the First Department affirmed, finding that the trial court correctly held that the defendants did not have actual or constructive notice of the condition under the circumstances. Plaintiff’s testimony confirmed that the water on the floor was not visible or apparent prior to his fall, and any statements that the employees or customers created the condition were speculative, at best. The court found that the water was not present for enough time to give defendants an opportunity to discover and remedy it, and that supermarket’s log showed that the area was inspected consistently and had been inspected only a half hour prior to the plaintiff’s fall. The court further found that the expert affidavits submitted by plaintiff did not create triable issues of fact since there was no evidence that similar falls had occurred.

The upshot from Velocci is that timely inspections and good record keeping can help a New York business prevent liability for slip and fall accidents.