Employee Slips on Fish Skin Outside of Lobster Processing Business:

Was Property Owner or Trash Collector Liable For the Fall?

A fish processing employee was injured when he slipped on fish refuse shortly after the sanitation service picked up the trash. The employee filed a lawsuit against the sanitation company—which claimed over against the restaurant/tenant and the owner landlord.  And, as a recent case illustrates, the Court was required to sort out the various claims.

Delivery driver Robert Arias sued to recover for personal injuries he sustained when he slipped and fell on a piece of fish skin on the ground at The Lobster Place, Inc., a wholesale seafood processing and distribution facility.

SMHS Realty Corp, owned the property, which it leased to the lobster business, which contracted with Sanitation Salvage Corp. to perform garbage removal services.

Property owner SMHS moved to dismiss the claim asserted by Arias, and Supreme Court denied the motion.  SMHS appealed.

Arias testified that the accident occurred on the sidewalk abutting the business after Sanitation had performed its morning garbage removal services, during which, he alleged, the fish skin was dropped on the ground.

Sanitation established prima facie that it neither caused the fish skin to be on the ground nor had notice that it was there. In opposition, Arias raised an issue of fact. He testified that he slipped on a salmon skin on the sidewalk. The accident occurred shortly after Sanitation was at the premises to remove organic waste, which included fish remains. Notwithstanding Sanitation’s claims that it did not drop fish remains the morning of the accident, the lobster business owner testified that there were occasions that garbage would end up on the street after trash pick-ups. That was sufficient circumstantial evidence to have the trier of fact decide the issue. If Sanitation was found to have dropped the salmon skin on the sidewalk, then there was duty to Arias because Sanitation, in failing to exercise reasonable care in the performance of its duties, launched a force or instrument of harm.

SMHS established that it could not be held liable for Arias’ injuries on the ground that it negligently maintained a trench drain at the premises near where the accident occurred, which caused the drain to become clogged and overflow, pushing fish debris (which the record demonstrated was driven into various drains whenever any lobster restaurant employees hosed down the floors) onto the sidewalk and into the street. SMHS, an out-of-possession landlord, was not contractually obligated to maintain the premises. Although its lease with the lobster business did not demise to the tenant “the pipes, ducts, conduits, wires, fixtures and equipment, the structural elements which serve the Demised Premises,” SMHS and Lobster’s course of conduct established that Lobster was responsible for maintaining and repairing the trench drain.

SMHS also claimed it could not be held liable for Arias’ injuries under Administrative Code of City of NY § 7-210, which imposed a non-delegable duty on land owners to maintain their sidewalks in a reasonably safe condition by, inter alia, removing snow, ice, dirt or other material from the sidewalk. SMHS established that it neither created the hazardous condition nor had actual notice or constructive notice of its existence for a sufficient length of time to discover and remediate.

A coworker testified that, on the morning of Arias’ accident, he did not see, and no one reported to him, that the drains overflowed; he had walked past the drains when he arrived at work that morning and had not seen them clogged or overflowing; no one reported to him that the drains had become clogged or overflowed the night before the accident; and he did not see the drains clogged or overflowing the day before the accident. In opposition, Arias submitted no evidence that the trench drain overflowed on the morning of his accident.

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