Black v. Kohl's Department Stores, Inc.

Mercure, J.P.

(dissenting). I respectfully dissent. The majority adopts a rule that evidence of merchandise dropped frequently on the floor of a department store by customers — a common condition that cannot be prevented in advance — may establish constructive notice of a dangerous condition despite proof that the aisle in which the plaintiff fell was inspected shortly before the incident. In my view, such evidence is insufficient — as a matter of law — to create a question of fact on the issue of whether the recurring nature of the situation may be deemed to *962have put defendant on constructive…