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January 18, 2018
S. Ct. Civ. No. 2017-0010
Shirley Rymer v. Kmart Corporation
      The Superior Court erred in dismissing a slip-and-fall personal injury action against the defendant retailer on summary judgment, a drastic remedy that should only be granted where there is no genuine issue as to any material fact. In a premises liability suit, a retailer’s actual notice of a hazardous condition can be shown if an employee created or was aware of the hazard before plaintiff fell. Here, the Superior Court improperly weighed the evidence against the plaintiff—the non-moving party—and resolved the conflicting evidence in favor of the retailer when it determined that an employee’s deposition testimony was a clarification of his loss prevention statement given on the day of the injury, rather than a contradiction of it. Where there is conflicting evidence in the record, a court cannot independently weigh the proof to resolve the conflict and must accept as true the evidence most favorable to the non-moving party, so long as it is supported by proper proofs. The Superior Court also erred in granting summary judgment on the basis that the record did not show a factual dispute as to whether the defendant had constructive notice of the hazardous condition. While a non-recurring hazardous condition lasting only a matter of minutes, without more, does not create the presumption of constructive notice, assessment of the opportunity for the proprietor of the premises to discover the dangerous condition involves contextual factors like the hazard’s color, size, location, and proximity to employees. Plaintiff in this case identified mitigating factors that, taken in the light most favorable to her, establish a genuine issue of material fact regarding whether the retailer could or should have become aware of the hazardous condition before she fell. The explosive nature of the soda spill, its bright purple color, location near the store’s entrance, its proximity to employees, and the fact that another customer stayed by the spill and eagerly solicited help, are factors distinguishing this case from others where the only constructive notice factor is the hazard’s duration. Whether these circumstances are sufficient to overcome the spill’s short duration and establish that the defendant retailer had constructive notice of the dangerous condition is a balancing of the evidence that belongs with the jury, not the Superior Court at summary judgment. The judgment dismissing the case with prejudice on summary judgment is reversed.
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