Borley v. United States, No. 20-4293 (2d Cir. 2021)
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After a shopper tripped over a metal rod at a military commissary store and sustained injuries, she filed suit against the government under the Federal Tort Claims Act (FTCA) for the store's negligence. The district court found that under New York law, no reasonable jury could have found the store liable for the shopper's injuries.
The Second Circuit vacated the district court's grant of the government's motion for summary judgment, concluding that plaintiff has established a triable issue of fact as to whether the commissary had sufficient notice (constructive or actual) of the hazard posed by the existence of an open emergency door that had an ankle-high metal bar in front of it. If she has, then the district court should have let her negligence claim reach a jury. In this case, the government, notwithstanding its spot-check policy, may still be charged with constructive notice of the hazard created by the metal bar because, as the record shows, it lacked any meaningful procedure that would have reliably and promptly notified employees of an open emergency door, and because the metal bar served no clear purpose and could have been removed altogether. Furthermore, plaintiff's evidence was not mere speculation or a general awareness of danger. Rather, the evidence showed that the commissary's manager specifically knew that these doors came open daily. The court explained that, when confronted with comparable facts, New York courts have readily found evidence of constructive or actual landowner notice sufficient to permit slip-and-fall cases to go to trial.
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