Faricelli v. TSS Seedman's, Inc.

New York Court of Appeals · Torts

TortsPremises liabilityConstructive noticeAppellate procedureslip and fallbanana peeldepartment storeconstructive notice

Facts

Plaintiff-wife slipped and fell on a blackened banana peel on the floor of the housewares section of defendant's department store. Plaintiffs sued for damages and argued that the blackened condition of the peel showed defendant had notice of a dangerous condition. Defendant had earlier sought summary judgment on the ground that there was no triable issue of fact as to notice, but its appeal from the denial of summary judgment was dismissed for want of prosecution after it failed to perfect the appeal. At trial, the jury apportioned fault 95% to defendant and 5% to plaintiffs.

Issue

Whether the Appellate Division could hear defendant's posttrial appeal on constructive notice despite defendant's earlier abandoned appeal, and whether evidence that the banana peel was blackened was sufficient to support a finding of constructive notice.

Rule

A prior dismissal for want of prosecution bars a subsequent appeal on questions presented in the earlier appeal, but an appellate court retains discretion to entertain the later appeal. On the merits of premises liability, constructive notice is not established without evidence that the defendant knew of the condition or that it existed for a sufficient time before the accident to permit an inference of notice; the mere fact that a banana peel was blackened does not by itself establish constructive notice.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a home-goods store in Buffalo, Nora Benton slipped on a dark, flattened strawberry near the checkout line. No witness saw the strawberry before the fall, and Nora's only proof at trial is that the fruit looked old and discolored.

Is that evidence sufficient to support a finding that the store had constructive notice of the hazard?

Explanation. Constructive notice requires evidence that the defendant knew of the condition or that it existed for a sufficient time before the accident to permit an inference of notice. Under the majority opinion, the mere darkened or blackened appearance of a food item on the floor, without more, is insufficient. So Nora's proof is not enough. (Derived from Faricelli v. TSS Seedman's, Inc. (n.d.).)