## Facts

- Douglas Gordon, a visitor to the American Museum of Natural History, fell while descending the museum’s front entrance steps.
- Gordon testified he slipped on the third step and, while falling, saw a piece of white, waxy paper near his left foot.
- He alleged the paper originated from a concession stand located on a plaza between two tiers of steps.
- No witness observed the specific paper on the steps before the fall.
- Gordon did not describe the paper as dirty or worn in a way suggesting it had been present for a significant time.
- Gordon claimed the museum was negligent for failing to discover and remove the paper.

## Issues

1. Whether the evidence was legally sufficient to establish the museum had actual or constructive notice of the specific piece of paper that caused the fall.
2. Whether liability could be upheld on appeal under a “creation of the condition” theory when that theory was not submitted to the jury.

## Decision

- The Court of Appeals reversed the Appellate Division and dismissed the complaint.
- The court held there was no evidence of actual notice and insufficient evidence of constructive notice.
- The court rejected reliance on generalized awareness of litter or the presence of other papers elsewhere shortly before the accident as proof of notice of the specific hazard.
- The court declined to affirm on a “creation” theory because it was not presented to the jury.
- The certified question was answered in the negative.

## Legal Principles

- Constructive notice requires proof that the specific defect was visible and apparent and existed for a sufficient length of time before the accident to permit discovery and correction.
- A defendant’s general awareness that litter or dangerous conditions may occur is not enough to establish constructive notice of the particular condition that caused the injury.
- Without evidence indicating how long a transient hazard existed, a finding of constructive notice cannot rest on speculation.
- An appellate court will not sustain a verdict on a liability theory not submitted to the jury.

## Conclusion

The court required concrete proof that the specific paper was present long enough to be discovered and remedied; absent such proof, neither actual nor constructive notice was established, and the plaintiff could not salvage the verdict using an unsubmitted “creation” theory.


Gordon v. Am. Museum of Nat. Hist., 67 N.Y.2d 836 (N.Y. 1986)