New York Law Review

Tag: dangerous condition

  • Thompson v. City of New York, 78 N.Y.2d 662 (1991): Duty to Maintain Streetlights and Dangerous Conditions

    Thompson v. City of New York, 78 N.Y.2d 662 (1991)

    A municipality’s duty to maintain streetlights extends only to situations where illumination is necessary to avoid dangerous or potentially hazardous conditions, and the mere outage of a streetlight does not automatically render a street dangerous.

    Summary

    Thompson sued the City of New York after being struck by a car at night at an intersection where a streetlight was out. She claimed the City breached its duty to maintain safe streets. The Court of Appeals held that the City was not liable because the plaintiff failed to demonstrate that the unlit streetlight created a dangerous condition. The court emphasized that municipalities are only required to maintain street lighting when necessary to prevent dangerous conditions, and the mere fact that a streetlight was out did not, by itself, establish such a condition.

    Facts

    Plaintiff was injured when a car hit her while she was crossing the Grand Concourse in the Bronx at night. The nearest streetlight had a burned-out bulb. Plaintiff sued the driver, the City of New York, and the City’s streetlight maintenance contractor, alleging the City failed to maintain the streetlights and keep the streets safe.

    Procedural History

    The trial court granted summary judgment to the City and its contractor. The Appellate Division initially affirmed, but on reargument, it reversed the trial court’s decision regarding the City, reinstating the complaint against it. The Appellate Division granted leave to appeal to the Court of Appeals, certifying a question of law.

    Issue(s)

    Whether the City of New York had a duty to maintain the streetlight in question, and whether the outage of the streetlight created a dangerous condition such that the City could be held liable for the plaintiff’s injuries.

    Holding

    No, because the plaintiff failed to demonstrate that the outage of the streetlight created a dangerous or potentially hazardous condition on the street.

    Court’s Reasoning

    The Court of Appeals stated that while municipalities have a duty to maintain streets in a reasonably safe condition, the duty to install and maintain street lighting is limited to situations where illumination is necessary to avoid dangerous conditions. The court distinguished this case from situations where a specific defect or unusual condition rendered the street unsafe. The court reasoned that the plaintiff had to show the City permitted a dangerous condition to exist and cause injury. The court found that the plaintiff only showed that the roadway was large and sometimes busy, a common condition at many city intersections. “The mere outage of the streetlight did not render this reasonably safe street dangerous.” The court distinguished the case from others where a dangerous condition, such as a malfunctioning traffic light or a roadway shoulder maintained in a dangerous condition, had been proven. The Court emphasized that a burned-out lightbulb, by itself, does not equate to a dangerous condition, absent other factors. The court did not discuss dissenting or concurring opinions as none were present.

  • Giuliani v. Ho’s Development Corp., 199 A.D.2d 897 (1993): Prior Landowner Liability for Dangerous Conditions

    Giuliani v. Ho’s Development Corp., 199 A.D.2d 897 (1993)

    Generally, liability for dangerous conditions on land does not extend to a prior owner of the premises, unless the condition existed at the time of conveyance and the new owner has not had a reasonable time to discover and remedy it.

    Summary

    A firefighter, Giuliani, was injured while fighting a fire in a building owned by Ho’s Development Corp. He alleged his injuries were caused by dangerous conditions in the building and sought to hold the City of New York, the prior owner, liable. The City had sold the property nine months prior to the fire under an agreement for the developer to rehabilitate the building. The court held that the City was not liable because the plaintiff failed to show the conditions existed when the City conveyed the property, or that the new owner lacked adequate time to remedy any defects. The City’s retained rights to inspect the rehabilitation progress did not create an obligation to remedy dangerous conditions.

    Facts

    The City of New York formerly owned a building. The City sold the building to Ho’s Development Corp. as part of a redevelopment plan for vacant housing. The agreement required Ho’s Development Corp. to rehabilitate the building into condominiums and commercial units. The deed included a land disposition agreement that stipulated a rehabilitation schedule. The City retained the right to access the property for inspection and utility maintenance. The agreement also required the developer to submit progress reports. If the developer defaulted, the City could re-enter and repossess the property.

    Plaintiff, a New York City firefighter, was injured while fighting a fire in the building, allegedly due to dangerous and defective conditions.

    Procedural History

    Plaintiff sued Ho’s Development Corp. and the City of New York. The lower court dismissed the complaint and cross-claims against the City. The Appellate Division affirmed the dismissal. This appeal followed, challenging the dismissal of claims against the City of New York.

    Issue(s)

    Whether the City of New York, as the prior owner of the property, could be held liable for the dangerous conditions on the property that allegedly caused the firefighter’s injuries.

    Holding

    No, because the plaintiff failed to demonstrate that the dangerous conditions existed at the time the City conveyed the property or that the new owner lacked adequate time to discover and remedy the defects; furthermore, the City’s retained rights did not create an obligation to remedy dangerous conditions.

    Court’s Reasoning

    The court applied the general rule that liability for dangerous conditions on land does not extend to a prior owner (citing Pharm v Lituchy). An exception exists if the dangerous condition existed at the time of conveyance and the new owner has not had a reasonable time to discover and remedy the condition. However, the plaintiff failed to prove either of these elements. The court emphasized that the City’s retained rights were tied to the developer’s compliance with the rehabilitation plan, not an obligation to remedy dangerous conditions. “[N]either the deed, the land disposition agreement nor any statute or regulation gave the City the right or the obligation to remedy dangerous conditions.” The court distinguished this case from Guzman v Haven Plaza Hous. Dev. Fund Co., where the landlord had a statutory duty to maintain the building in a safe condition. Here, the City had no such duty. The court noted that the City sold the property nine months before the fire, providing ample time for the new owner to address any issues. Therefore, the City could not be held liable for the firefighter’s injuries.

  • Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986): Establishing Constructive Notice of a Dangerous Condition

    Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986)

    To demonstrate constructive notice of a dangerous condition, a plaintiff must show that the defect was visible and apparent, and existed for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it.

    Summary

    Plaintiff Gordon sued the American Museum of Natural History for injuries sustained when she fell on a broken step. The Court of Appeals affirmed the lower court’s decision, finding sufficient evidence for the jury to conclude that the museum had constructive notice of the dangerous condition. The court emphasized the importance of the defect’s appearance and duration in establishing constructive notice, noting the jury could infer, based on photographs and testimony, that the condition existed long enough for the museum to have discovered and remedied it through reasonable care. The court also addressed objections to the trial court’s jury instructions, finding no reversible error.

    Facts

    Plaintiff Gordon fell on a stairway within the American Museum of Natural History. She claimed the fall was caused by a broken or defective step. She introduced photographic evidence purporting to depict the condition of the step at the time of the accident. Plaintiff and her daughter provided testimony regarding the step’s condition. The defense argued lack of notice of the defect and challenged the accuracy and timing of the photographs.

    Procedural History

    The plaintiff won a jury verdict at trial. The defendant appealed to the Appellate Division, which affirmed the trial court’s judgment. The defendant then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether there was sufficient evidence for the jury to conclude that the defendant had constructive notice of the defective condition on the stairway.
    2. Whether the trial court erred in its jury instructions regarding notice and foreseeability.

    Holding

    1. Yes, because the jury could infer from the photographs and testimony regarding the irregularity, width, depth, and appearance of the defect that the condition existed for a sufficient length of time that the defendant should have acquired knowledge of it in the exercise of reasonable care.
    2. No, because the court’s charge essentially paralleled the proffered instruction regarding notice, and the charge adequately incorporated the substance of the request regarding the absence of prior accidents.

    Court’s Reasoning

    The Court of Appeals focused on whether the record supported the jury’s verdict regarding constructive notice. It emphasized that the jury was entitled to consider the photographs and testimony presented by the plaintiff to determine if a negligent condition existed and if it proximately caused the plaintiff’s fall. The court stated, “Specifically, the jury could have inferred from the irregularity, width, depth and appearance of the defect apparent from the concrete surface exhibited in the photographs, that the condition had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant in the exercise of reasonable care.” The court cited prior cases, including Blake v City of Albany and Batton v Elghanayan, to support this principle.

    Regarding the defendant’s objections to the jury instructions, the court found that the trial court’s charge essentially paralleled the defendant’s requested instruction regarding the specific step where the defect was located. Furthermore, the court noted that no objection to the charge as given was lodged by defendant’s counsel as required by CPLR 4110-b. As for the absence of prior accidents, the court held that the charge, taken as a whole, adequately incorporated the substance of this request. The court referenced Spinelli v Licorich and Gross v City of New York to support its conclusion that the charge was adequate.

  • Gordon v. City of New York, 48 N.Y.2d 874 (1979): Establishing Constructive Notice of Dangerous Conditions on City Streets

    Gordon v. City of New York, 48 N.Y.2d 874 (1979)

    A municipality can be held liable for injuries resulting from a dangerous condition on its streets if it had constructive notice of the condition, meaning the condition existed for a sufficient period that the city should have discovered and corrected it.

    Summary

    Plaintiff Gordon sued the City of New York and several contractors for injuries sustained when she tripped on a misaligned catch basin cover. The Court of Appeals affirmed the dismissal of the claims against the contractors due to lack of evidence linking them to the specific barricade that caused the injury. However, the court upheld the verdict against the City, finding sufficient evidence for the jury to conclude that the City had constructive notice of the dangerous condition. The court reasoned that the jury could infer constructive notice from the duration and nature of the defect, as well as the City’s awareness of ongoing street work in the area.

    Facts

    Plaintiff tripped and fell due to a misaligned catch basin cover on a New York City street. The cover was depressed relative to the surrounding pavement. Weber Construction Co. had performed work in the area months prior to the accident, but other contractors, Hanson Plumbing and Heating and Fane Construction Company, were also working in the vicinity under permits issued by the city. A witness, Johnson, testified to observing the condition weeks before the accident. A rolling machine bearing Weber’s name was seen in the area two days after the accident.

    Procedural History

    The plaintiff sued the City of New York, Niagara Mohawk Power Corporation, UTEC Constructors, Inc., and Weber Construction Co. The trial court found in favor of the plaintiff against all defendants. The Appellate Division reversed the judgment against the contractors but upheld the verdict against the City. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    1. Was the evidence connecting Weber Construction and, through it, Niagara Mohawk and UTEC, with the accident sufficient to support verdicts against them?
    2. Was there enough proof that the city had notice of the defect to ground the finding that it was liable?

    Holding

    1. No, because the evidence that Weber erected the roadway blockade which diverted the plaintiff was speculative at best.
    2. Yes, because the jury could have inferred constructive notice based on the condition’s duration, the city’s duty to maintain streets, and its awareness of ongoing street work in the area.

    Court’s Reasoning

    Regarding the contractors, the court found insufficient evidence to prove that Weber Construction Co. erected the specific barricade that caused the plaintiff’s injury. The court noted that other contractors were working in the area, and the presence of Weber’s equipment nearby after the accident was insufficient to establish liability. The court cited Kelly v Otis Elevator Co., 283 App Div 363, 367, stating the case against the contractors was “speculative”.

    Regarding the City, the court acknowledged the absence of direct proof of actual notice. However, it emphasized that constructive notice, arising from a negligent failure to discover a discoverable condition, could establish liability. The court reasoned that the jury could infer constructive notice from the depressed state of the catch basin cover, suggesting a long-standing condition. Additionally, the witness’s testimony of observing the condition weeks prior supported the inference of constructive notice. Further, the city’s issuance of permits for street work and the regular visits by field inspectors reinforced the idea that the city should have been aware of the dangerous condition. The court cited Putnam v Stout, 38 NY2d 607, 612, for the principle that the city’s awareness of ongoing special street work provides a basis for determining that it was or should have been aware of the danger. The court stated, “a negligent failure to discover a condition that should have been discovered can be no less a breach of due care than a failure to respond to actual notice”. The court referred to Batton v Elghanayan, 43 NY2d 898, where a jury found constructive notice from photographs showing the condition of a concrete floor. The court found the jury could reasonably conclude that the City had constructive notice and failed to remedy the dangerous condition.

  • Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554 (1968): Landlord’s Liability for Creating a Dangerous Condition

    Gallagher v. St. Raymond’s Roman Catholic Church, 21 N.Y.2d 554 (1968)

    A landlord can be held liable for negligence when their affirmative act creates a dangerous condition on a common area of the property, regardless of notice.

    Summary

    Gallagher, a tenant, sued St. Raymond’s Roman Catholic Church, her landlord, for injuries sustained when she slipped and fell on wet steps. The water came from a hose placed by the landlord to deter loitering. The trial court dismissed the complaint, likening the condition to a natural rain event. The Court of Appeals reversed, holding that the landlord’s deliberate act of creating the watery condition distinguished it from naturally occurring hazards. The Court emphasized that the landlord’s liability stemmed from the creation of the dangerous condition, not from a failure to address a naturally occurring one.

    Facts

    Plaintiff was a tenant in an eight-family building owned by the defendant, St. Raymond’s Roman Catholic Church.
    The plaintiff fell on the marble steps leading out of the building. The steps were wet because the defendant placed a garden hose, which protruded from a second-story window directly over the stairway, to spray water on the steps. The defendant intentionally created the waterfall to prevent people from sitting on the steps. The plaintiff testified she walked carefully but still slipped and fell due to the water. A police officer corroborated that the steps were entirely wet.

    Procedural History

    The trial court dismissed the plaintiff’s complaint at the close of her proof, finding a failure to establish actionable negligence.
    The Appellate Division affirmed the trial court’s decision.
    The Court of Appeals reversed the Appellate Division’s order, holding that the plaintiff had established a prima facie case requiring submission of the issues to a jury.

    Issue(s)

    Whether a landlord is liable for injuries sustained by a tenant who slipped and fell on a common stairway made slippery by the landlord’s deliberate act of spraying water on the steps.

    Holding

    Yes, because the landlord’s liability is based on their affirmative act in creating a dangerous condition, not on a failure to remedy a condition arising from natural causes or a failure to provide notice of a dangerous condition.

    Court’s Reasoning

    The court distinguished this case from slip-and-fall cases involving naturally occurring conditions, such as rain. The court emphasized that the landlord created the dangerous condition by intentionally spraying water on the steps. The court stated, “Neither his duty nor his potential liability is to be predicated upon his ‘permitting’ a dangerous condition to exist, but rather is based upon his own affirmative act in creating the condition complained of.” Unlike conditions caused by weather, the landlord had control over the presence of water on the steps. The Court reasoned that the landlord had a duty to exercise reasonable care to ensure the steps were safe, and deliberately creating a hazardous condition breached that duty. The court found that the issues of negligence, causation, and damages were for the jury to decide, viewing the facts in the light most favorable to the plaintiff. The Court also noted that because the defendant created the condition, usual questions of notice were irrelevant. The court explicitly rejected the trial court’s reliance on Kraus v. Wolf, stating that case involved a wet condition caused by natural causes, while the instant case involved a condition intentionally created by the landlord. The court noted that a landlord has a duty to use reasonable diligence to keep common areas safe, citing Melodee Lane Lingerie Co. v. American Dist. Tel Co., 18 N.Y.2d 57, 63. The court stated the landlord should exercise reasonable care to make certain that the steps are safe from known dangers or those which could be anticipated, and certainly not to create a situation likely to result in injury to a tenant, citing Restatement, 2d, Torts, § 361 and Nevoso v. Putter-Fine Bldg. Corp., 18 A.D.2d 317, 320.

  • Mayer v. Temple Properties, 307 N.Y. 559 (1954): Liability for Dangerous Conditions to Child Trespassers

    307 N.Y. 559 (1954)

    A landowner can be liable for injuries to even a trespasser, including a child, if the injuries result from an affirmatively created, dangerous condition or trap on the property, especially when the landowner knows children frequent the area.

    Summary

    Frank Mayer, a 12-year-old boy, died after falling into an unguarded opening on a platform behind a building owned by Temple Properties and used in common with another defendant. The platform was accessible to children, who often played there, by crawling under a gate. The opening, normally covered by steel doors, was instead covered with flimsy wood that gave way when Mayer stepped on it. The New York Court of Appeals affirmed a judgment for the plaintiff, holding that the defendants created a dangerous trap and were liable for the boy’s death, despite his status as a trespasser. The court emphasized the affirmative act of creating a hazardous condition, the foreseeability of children’s presence, and the deceptive appearance of safety.

    Facts

    The platform, located behind defendants’ building in a congested neighborhood with many children, was accessible via a ladder and by crawling under a gate. The platform had a 4-foot-square opening used for raising and lowering ash and rubbish cans, normally covered by two hinged steel doors. Children frequently crawled under the gate and played on the platform, a practice known to the defendants’ agents, who occasionally chased them away. On the day of the accident, one steel door was open, and the opening was covered by “jerry-built” wood, described as being like orange crate or shipping crate material. Mayer and a friend crawled under the gate and onto the platform. When Mayer stepped on the wood covering the opening, it gave way, and he fell 55 feet to his death.

    Procedural History

    The plaintiff, Mayer’s father, sued the defendants for negligence. The case was tried before a Referee without a jury, who found in favor of the plaintiff. The Appellate Division affirmed the judgment. The defendants appealed to the New York Court of Appeals.

    Issue(s)

    Whether the defendants were liable for the death of the decedent, a trespasser, where the death resulted from a dangerous condition affirmatively created by the defendants on their property and where the defendants knew children frequented the area.

    Holding

    Yes, because the defendants affirmatively created a dangerous trap by covering the opening with flimsy wood, knew children frequented the area, and the insecure covering gave a deceptive appearance of safety.

    Court’s Reasoning

    The Court of Appeals emphasized that while New York generally follows the rule that landowners owe trespassers only a duty to refrain from affirmative acts of negligence or intentional harm, this case fell within an exception. The court distinguished this case from those involving mere failure to repair or maintain property. Here, the defendants affirmatively created a dangerous condition by knowingly placing a frail wooden covering over a deep hole. The court noted, “Here we have abundant proof of affirmative action by defendants, who ‘changed conditions’ and ‘created new perils there’ by providing an insecure and deceptive covering over the platform opening.” The court also stressed that the defendants were aware that children frequently played on the platform, making the incident foreseeable. The court equated the situation to an “explosive bomb, highly inflammable material, a spring gun, or kindred devices,” stating that creating such a hazardous situation amounted to a “reckless disregard of the safety of human life.” The court distinguished Carbone v. Mackchil Realty Corp., 296 N.Y. 154 (1946), where the dangerous condition was a pre-existing condition far removed from public travel, and there was no affirmative act by the defendant. The Court held that the question of the decedent’s contributory negligence was a question of fact, and it was bound by the lower courts’ findings on that issue. Judges Dye and Van Voorhis dissented, arguing the defendants did not violate a duty owed to a trespasser, citing Carbone.

  • Neal v. New York Central Railroad Co., 231 N.Y. 51 (1921): Duty to Remedy Known Dangerous Conditions in the Workplace

    Neal v. New York Central Railroad Co., 231 N.Y. 51 (1921)

    An employer can be liable for injuries to an employee if a foreman is aware of a dangerous condition and fails to take reasonable steps to remedy it, even if the employer did not create the condition.

    Summary

    Neal, an express company driver, was injured when a heavy iron casting toppled over on him at the defendant’s freight platform. Another driver had warned the foreman, Dan Hart, about the casting’s precarious position a half hour earlier. Neal sued under the Employers’ Liability Act, alleging the foreman’s negligence caused his injuries. The New York Court of Appeals held that the foreman’s awareness of the danger and failure to act presented a question for the jury as to whether the defendant exercised reasonable care. The court reversed the Appellate Division’s dismissal of the complaint and ordered a new trial.

    Facts

    The plaintiff, Neal, worked as a driver for the defendant. On February 25, 1913, while working on the defendant’s delivery platform at Lexington Avenue and Forty-ninth Street, he was injured by a falling iron casting. The casting was approximately three feet six inches high, six inches thick, and a foot and a half wide, weighing about 600 pounds. It had been leaning against an iron pillar on the platform. Another driver, Louis Neal, testified he had warned foreman Dan Hart about the dangerous placement of the iron casting approximately a half-hour before the accident.

    Procedural History

    The trial court found in favor of the plaintiff. The Appellate Division reversed the trial court’s verdict and dismissed the complaint, finding the foreman’s actions, at most, an error of judgment. The New York Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    Whether the foreman’s knowledge of the dangerous condition caused by the placement of the iron casting and his failure to remedy the situation presented a question of fact for the jury regarding the defendant’s negligence.

    Holding

    Yes, because the foreman’s awareness of the danger and failure to act presented a question for the jury as to whether the defendant exercised reasonable care under the circumstances.

    Court’s Reasoning

    The Court of Appeals reasoned that the negligence, if any, rested in the foreman’s knowledge of the dangerous condition and his failure to remedy it. The court emphasized that the employer has a duty to use reasonable care to avoid subjecting employees to unnecessary danger. The court stated, “when he knows that one set of servants have so negligently done their work as to occasion danger to a fellow-servant, it is his duty to interpose and take reasonable means to see that the rules are complied with, the work properly done and the danger removed.” The court determined that a reasonable jury could conclude that a reasonably careful foreman, considering the platform’s use by many workmen, would have heeded the warning and removed the iron or secured it to prevent the accident.

    The court distinguished the “error of judgment” defense raised by the defendant. The court clarified that a foreman’s judgment cannot be substituted for the reasonably prudent person standard when assessing negligence. The court explained that while an “error of judgment” may excuse an action in a sudden emergency, this case did not involve such circumstances. The court also distinguished cases like Loftus v. Union Ferry Co. of Brooklyn, 84 N.Y. 455 (1881), where a structure’s long-standing safe use negated any indication of potential danger. Here, the precarious placement of the iron casting created an immediate risk that a prudent foreman should have recognized.

    The court concluded that the Appellate Division erred in determining, as a matter of law, that the foreman exercised reasonable care. Because the Appellate Division also reversed the factual finding of the defendant’s negligence, the Court of Appeals could not simply reinstate the jury verdict but had to order a new trial.

  • Idel v. Mitchell, 158 N.Y. 134 (1899): Landlord Liability for Known Dangerous Conditions

    Idel v. Mitchell, 158 N.Y. 134 (1899)

    A landlord is liable for injuries to a tenant caused by a dangerous condition on the property if the landlord knew of the condition or it existed for such a time that the landlord should have known of it, and the tenant did not contribute to the injury.

    Summary

    The plaintiff, a tenant, fell due to a protruding nail on a staircase. The court addressed whether the landlord was liable for the plaintiff’s injuries. The Court of Appeals of New York held that the landlord could be held liable if they knew or should have known about the nail, but the plaintiff failed to prove that the nail was there long enough for the landlord to have constructive notice. The court emphasized that the plaintiff herself had previously hammered in nails on the staircase, undermining the claim that the nail had been protruding for an extended period.

    Facts

    The plaintiff was a tenant in a building owned by the defendant.
    The plaintiff fell on a staircase, allegedly due to a protruding nail.
    Prior to the accident, the plaintiff had removed a stair carpet and regularly swept and scrubbed the stairs.
    The plaintiff had noticed other nails sticking up and had informed the defendant’s agent, who told her to drive them in.
    The plaintiff had used a hammer to drive in the nails she found, including on the Friday before the accident.

    Procedural History

    The plaintiff sued the defendant for negligence, seeking damages for her injuries.
    The trial court ruled in favor of the plaintiff.
    The appellate division affirmed the trial court’s decision.
    The Court of Appeals of New York reversed the lower courts’ rulings.

    Issue(s)

    Whether the plaintiff presented sufficient evidence to prove that the defendant had actual or constructive notice of the protruding nail that caused her injury.

    Holding

    No, because the plaintiff failed to prove that the nail had protruded for such a length of time that the defendant should have known about it.

    Court’s Reasoning

    The court emphasized that the plaintiff had the burden of proving that the defendant knew or should have known about the dangerous condition. The court reasoned that there was no evidence to show how long the nail had been protruding or how it came to be in that position. “For aught that appears in the testimony it may have been either partly driven into or pulled out of the step within fifteen minutes prior to the accident.”

    The court found it significant that the plaintiff herself had driven in nails on the staircase the week before the accident. The court reasoned that the plaintiff’s own testimony undermined her claim that the nail had been protruding for a significant period. The court stated: “Thus it appears from the plaintiff’s own testimony that one week before the happening of the accident she personally drove in all the nails she could find.”

    Because there was no proof that the defendant had actual or constructive notice of the dangerous condition, the court concluded that the motion to dismiss the complaint should have been granted. The court stated, “The plaintiff, therefore, failed to meet the burden resting upon her of establishing that the nail causing the mischief had protruded for such a length of time as to charge the defendant with constructive notice of its presence”.