"BABY, YOU'RE THE TOPS!"

After picking up lunch from the deli counter of a local market. Donna Tenkate proceeded towards the checkout counters at the front of the store. As she passed the floral department, Tenkate decided to grab another item, shifted direction, and slipped on what she alleged was a puddle of water.

In a personal injury lawsuit filed against Tops Markets, Tops was denied summary judgment by the Tompkins County Supreme Court. In its review of that denial, the Appellate Division, Third Department, noted that it was initially Tops’s burden to establish that it neither created the dangerous condition nor had actual or constructive notice of its existence. To that end, Tops presented deposition testimony from its assistant store manager who asserted that it was his job to detect and correct any water accumulation and that neither he nor any of the other store employees had knowledge of any slippery conditions prior to Tenkate's fall.

Once a lack of notice was established, the burden shifted to Tenkate to raise a triable issue of fact. In that regard, Tenkate submitted photographs of the accident site which showed that none of the plants in the floral display had drainage pans to collect displaced water. Moreover, her evidence confirmed that the store provided no matting to combat any overflow caused when the floral display was watered. (The store's sketchy record keeping of its inspection routine also proved helpful to Tenkate's position.)

After reviewing the entire record, the AD observed as follows:

Viewing the evidence, in its totality, in a light most favorable to plaintiffs and according them the benefit of every reasonable inference, we find that plaintiffs raised a triable issue of fact that defendant created the condition upon which plaintiff fell ..., thus negating the claim of a lack of notice .... [The store manager's] testimony concerning the daily timing for the watering of the plants, the magnitude of the floral display, its proximity to plaintiff's fall, and the fact that the plants ... failed to have drain pans to collect water after a watering supports the contention that defendant created this condition .... With the goal of a motion for summary judgment being issue finding rather than issue determination ..., we affirm the denial of defendants' motion for summary judgment ....

Looks like Tops bottomed out.

For a copy of the Appellate Division's decision, please us this link: Tenkate v. Tops Markets, LLC