Rosemary Brown was injured at an Outback Steakhouse when she slipped and fell on a "wet or greasy substance on the floor extending from a nearby kitchen door to an area right next to the location where [Ms. Brown] fell."
When she later filed a personal-injury lawsuit in the Nassau County Supreme Court, the restaurant chain sought to dismiss the case alleging that it neither had "actual or constructive notice" of the condition nor was responsible for its creation.
While, in our view, the Nassau County Supreme Court correctly dismissed the case, the Appellate Division, Second Department, reversed.
Although the restaurant established that it lacked notice of the slippery condition prior to Ms. Brown's fall, the AD2 was of the opinion that evidence suggested that the restaurant "caused the allegedly dangerous condition."
Apparently, the court credited the testimony of Ms. Brown's co-worker, who testified that restaurant employees had been seen "periodically" carrying trays of food through the area in question. (There is no indication that the co-worker actually witnessed the spill or its cause.) Yet, the appellate court was of the opinion that this testimony raised a "triable issue of fact as to the [restaurant's] creation of the allegedly dangerous condition ...."
How is the act of carrying food trays "the creation of a dangerous condition?"
We doubt Outback's employees were encouraged to empty their trays onto the floor. (No testimony appears to have been elicited in that regard.) So, why, then, is this "slip and fall" different from countless other "slip and fall" cases that have met with dismissal?*
Here's hoping the AD2 isn't adopting Outback's slogan: "No Rules. Just Right." (Cause apparently the steakhouse could use some help.)
For a copy of the Appellate Division's decision, please use this link: Brown v. Outback Steakhouse
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*Try, for example, to reconcile Outback's outcome with Joseph v. Villages at Huntingon Home Owners Association, Inc ., wherein the AD2 suggested that a party may not be held liable for "trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip ...."