Case Against County Dismissed as Defect Did Not Arise Immediately After Work Performed

In McConnell v. County of Nassau, et al (County of Nassau, Index No. 605166/14), a plaintiff's slip-and-fall case was dismissed by the Appellate Division, Second Department (on June 5, 2024) - despite that plaintiff initially winning his case at trial.  The case arose after the plaintiff allegedly slipped, fell, and sustained injuries on July 4, 2013  at premises owned by the defendant County of Nassau.  A lawsuit was filed thereafter, and the plaintiff's theory of liability at trial was that he slipped and fell on a defective painted depth marker, which was a sign painted onto the pool deck indicating the depth of the water at that location (as, he testified at trial that after he fell, he stood up and ran his foot along the painted area and it felt like "a sheet of ice").    The evidence adduced at trial showed that depth markers were applied to the pool deck by the County between 2006 and 2008 using a mixture of sand and paint.  Further, the plaintiff's expert testified, among other things, that the County's method of sprinkling sand on top of the paint was not the safest way to paint the depth markers because this practice did not ensure equal distribution of the sand or that the sand would remain permanently on the paint; and that the best method of painting the depth markers was utilizing a paint that already had sand mixed into the paint. 

At the conclusion of the trial on the issue of liability, the jury returned a verdict, finding that the County was negligent and that its negligence was a substantial factor in causing the accident.  Thereafter, the County made an application, in effect, pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability and for judgment as a matter of law dismissing the complaint insofar as asserted against it.  The Court denied the application.  After a jury returned a verdict in favor of the plaintiff and against the County on the issue of damages, the Court issued a judgment in favor of the plaintiff and against the County in the principal sum of $170,000.  The County appealed.

On appeal, the Appellate Division, Second Department revered the trial court's decision, thereby dismissing the plaintiff's case.  The Appellate Division noted that there was no prior written notice demonstrated with respect to the alleged defect, and that no exceptions to this requirement applied, such as creation of the defect.  Particularly, the Appellate Division held the following: "Although the plaintiff's expert testified at trial that the County's method of applying depth markers was inferior to the practice of using a paint that already contained sand, the plaintiff failed to present any evidence demonstrating that the County's application of the depth markers on the pool deck immediately resulted in the existence of a dangerous condition[...]The plaintiff's expert testimony indicated that over time, weather conditions, such as rain, could cause the sand in the paint to degrade and that the depth markers should have been repainted approximately every two to three years.  The plaintiff's evidence at trial, at most, established that environmental effects over time created the alleged dangerous condition, which was insufficient to impose liability on the County (see Loghry v. Village of Scarsdale, 149 AD3d 716).

Salvatore R. Marino, Esq.