Chartwell Wins Summary Judgment in New York Premises Liability Case


In a case pending in the United States District Court for the Northern District of New York, John M. Wutz, Esquire of Chartwell’s Philadelphia, Pennsylvania, and Mooretown, New Jersey, offices, obtained summary judgment in favor of a Charwell client in the case of Jean Toscano v. PetSmart, Inc. Plaintiff alleged that on May 9, 2015, she was at the PetSmart store in Glenmont, New York, when she slipped in a puddle of dog urine on the floor of an aisle.  As a result of her fall, Plaintiff alleged permanent and serious injuries to her neck, back and hip.  She underwent conservative treatment to her neck and back and it was recommended that she undergo an anterior cervical discectomy with fusion at C4 through C7. Plaintiff also underwent surgery to her left hip to repair a torn labrum. Plaintiff’s last settlement demand prior to the motion being granted was $525,000.

In its Order and Opinion, the Court ordered that Plaintiff failed to adduce evidence of actual or constructive notice of the puddle on which she slipped.  In New York, at the summary judgment stage, the defendant has the burden of proving that the defendant did not create nor did the defendant have notice of the allegedly hazardous condition. In other words, the burden of proof is shifted from the plaintiff to the defendant. If the defendant adduces sufficient evidence that the defendant did not create or have notice of the condition, the burden then shifts back to the plaintiff to come forward with evidence creating a genuine issue of material fact as to whether the defendant either created or had notice, either actual or constructive, of the hazardous condition.  

A defendant can meet its initial burden by eliciting testimony or other evidence that the area had been inspected shortly before the alleged incident and found to be clear of any dangers. Chartwell was able to elicit testimony from one of PetSmart’s managers that either he or another manager inspected the area in the 15 to 20 minutes before the incident.  

While PetSmart’s manager could not recall whether he or another manager conducted the scheduled inspection just prior to the incident, the Court held that PetSmart adduced evidence of its “routine practice” of inspections, which the Court held was admissible to prove that on the date of Plaintiff’s incident PetSmart’s managers conducted an inspection of the entire store 15 minutes before Plaintiff allegedly slipped. The Court noted that “[e]vidence of . . . an organization’s routine practice may be admitted to prove that on a particular occasion the . . . organization acted in accordance with the . . . routine practice” Fed. R. Evid. 406. The Court held that PetSmart’s requirement of having a manager conduct proper walkthroughs at specified times (including one approximately 15 minutes before Plaintiff slipped) qualified as an organization’s routine practice. It further held that the evidence of this “routine practice” was sufficient to meet PetSmart’s initial burden of proof and shift the burden of proof back to Plaintiff.  Plaintiff then failed to come forward with sufficient evidence to create a genuine issue of material fact showing that PetSmart had either actual or constructive notice of the spill on the floor. As such, summary judgment was granted in PetSmart’s favor and against Plaintiff.

Mr. Wutz frequently represents large national self-insured companies, domestic insurers and the Lloyd’s of London leading and following markets in the defense of premises liability, insurance fraud, wrongful arrest, automobile, products liability and general liability claims. He is admitted to practice before the State and Federal Courts in the Commonwealth of Pennsylvania, State of New Jersey and State of New York.  

Chartwell Law defends major companies in liability and workers’ compensation matters throughout Massachusetts, Rhode Island, New York, New Jersey, Pennsylvania, Tennessee and Florida.  For more information visit: