Reaffirming New York’s “Reasonable Time to Remedy” Standard: One Minute of Actual Notice of a Store Spill Is Insufficient, as a Matter of Law, to Establish Breach

Introduction

In Kissoon v. Wal-Mart Real Estate Business Trust, No. 24-2822 (2d Cir. Nov. 7, 2025) (summary order), the United States Court of Appeals for the Second Circuit affirmed the Eastern District of New York’s grant of summary judgment to Wal-Mart and associated defendants on a premises-liability negligence claim arising from a slip-and-fall in a Valley Stream, New York Walmart store. Although the decision is a summary order and therefore nonprecedential under FRAP 32.1 and Local Rule 32.1.1, it provides a clear and detailed application of New York’s “reasonable time to remedy” standard in the context of transient spill hazards documented by surveillance video.

The litigation turned on a narrow but dispositive issue: after Wal-Mart had actual notice of a liquid soap spill, did it have a reasonable opportunity to remedy or sufficiently secure the hazard before the plaintiff fell approximately one minute later? The Second Circuit concluded that, on these facts and under controlling New York law, no reasonable juror could find the store’s response unreasonable in the limited time it had.

Summary of the Opinion

Applying de novo review, the court affirmed summary judgment for the defendants. The parties accepted the store’s surveillance footage as accurate, and the panel relied on the following undisputed timeline:

• 1:44:30 p.m.: A child spills liquid soap on the floor.
• 1:46 p.m.: The child’s mother attempts to clean the spill.
• 1:48 p.m.: The mother notifies a Wal-Mart employee of the spill (actual notice begins).
• 1:48:33 p.m.: The employee returns and places a towel over the spill, having radioed for assistance and requested a warning cone and a cleaning crew.
• 1:48:54 p.m.: The plaintiff, Dhoorpattie Kissoon, slips on the liquid soap and falls.

The panel framed the “sole question” as whether the defendants acted unreasonably in the brief interval—roughly one minute—between actual notice and the fall. It held they did not. Emphasizing New York authority holding that intervals of two to three minutes are insufficient as a matter of law to impose liability for failure to remedy a transient spill, the court ruled that the store’s swift steps—radioing for help, requesting a cone and cleaning crew, and covering the spill with a towel—were reasonable given the short time available and the nature of the hazard.

The court also declined to consider plaintiff’s new appellate argument that the employee allegedly made the condition worse by throwing a towel on the spill and then walking away, deeming that argument forfeited because it was not raised in the district court.

Analysis

Precedents Cited and Their Influence

The panel’s reasoning is anchored in well-established New York premises-liability principles and standard federal summary-judgment doctrines:

• Summary judgment framework:
  • Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d 673, 675 (2d Cir. 2016) — de novo review standard; court views evidence in the nonmovant’s favor.
  • Union Mut. Fire Ins. Co. v. Ace Caribbean Mkt., 64 F.4th 441, 445 (2d Cir. 2023) — summary judgment proper where no rational factfinder could find for the nonmovant on the record as a whole.
  • Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) — in diversity, federal courts apply state substantive law (here, New York).
• Elements of negligence and premises liability under New York law:
  • Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998) — elements: duty, breach, causation/damages.
  • Baez v. Jovin III, LLC, 41 A.D.3d 751, 752 (2d Dep’t 2007) — a plaintiff must show defendant created the condition or had actual/constructive notice for a sufficient time to discover and remedy.
  • Urrutia v. Target Corp., 681 F. App’x 102, 104 (2d Cir. 2017) — no breach without actual or constructive notice plus a reasonable time to correct.
  • Cuminale v. 160-55 Crossbay Boulevard, LLC, 229 A.D.3d 682 (2d Dep’t 2024) — defendant must have a reasonable amount of time to correct the condition.
  • Stasiak v. Sears, Roebuck & Co., 281 A.D.2d (2d Dep’t 2001) — totality of the circumstances governs whether there was a reasonable opportunity to address a spill; very short intervals (e.g., roughly 90 seconds) are insufficient as a matter of law.
• “Short interval” spill cases finding no liability as a matter of law:
  • Gonzalez v. K-Mart Corp., 585 F. Supp. 2d 501, 505 (S.D.N.Y. 2008) — two to three minutes insufficient to afford a reasonable opportunity to address a spill.
  • Byrd v. Wal-Mart, Inc., No. 2010/006514, 2013 WL 10981559, at *2 (N.Y. Sup. Ct. Aug. 8, 2013), aff’d, 128 A.D.3d 629 (2d Dep’t 2015) — two minutes insufficient as a matter of law.
  • Rallo v. Man-Dell Food Stores, Inc., No. 2012/003326, 2013 WL 5913158, at *1 (N.Y. Sup. Ct. Sept. 23, 2013), aff’d, 117 A.D.3d 705 (2d Dep’t 2014) — three minutes insufficient.
• Appellate forfeiture of new arguments:
  • In re Lynch, 430 F.3d 600, 605 (2d Cir. 2005) — courts generally do not consider arguments raised for the first time on appeal.
  • Rossbach v. Montefiore Med. Ctr., 81 F.4th 124, 140 (2d Cir. 2023) — especially true where arguments were available below and no reason is given for the failure to raise them.

Collectively, these authorities underwrite the panel’s conclusion that a very brief period between notice and injury—here, about one minute—cannot, without more, sustain a triable claim that a retailer acted unreasonably in responding to a transient spill.

Legal Reasoning

The court’s reasoning proceeds in three steps:

1. Factual focus on the notice-to-injury interval, supported by video. The court relied on undisputed surveillance timestamps to measure the exact window after Wal-Mart received actual notice (1:48 p.m.) and before the fall (1:48:54 p.m.). The video also confirmed the steps the employee took: radioed for assistance, requested a cone and cleaning crew, briefly left the camera’s view and returned in about 30 seconds, and placed a towel over the spill. This objective timeline eliminated factual ambiguities that might otherwise preclude summary judgment.
2. Doctrinal filter: reasonable time to remedy under New York law. New York premises liability requires not just notice, but notice plus a reasonable opportunity to discover and correct the hazard. The panel emphasized the “totality of the circumstances” and the nature of the hazard: spills are common in retail, and while a slip hazard is serious, it does not present the sort of immediate, life-threatening peril (e.g., an open elevator shaft or toxic exposure) that would demand extraordinary instantaneous measures. Against that scale, roughly one minute—during which the store promptly initiated standard safety protocols—does not amount to a failure of reasonable care “as a matter of law.”
3. Consistency with the short-interval line of cases. The panel aligned the outcome with New York authority finding that two to three minutes is insufficient to impose liability for failure to remedy a spill. If two to three minutes is legally insufficient (Gonzalez, Byrd, Rallo), one minute—particularly coupled with affirmative steps to mitigate and summon assistance—cannot be sufficient to create a triable issue of breach.

The plaintiff’s argument that the employee should have remained to “stand guard” or should have summoned assistance without leaving the aisle failed for two reasons. First, the record showed that assistance was in fact summoned within the minute. Second, New York law does not impose a categorical duty to “stand guard” over a transient spill in the seconds following first notice, especially where the employee is taking steps to secure the area and obtain proper equipment and personnel.

Finally, the panel declined to entertain a new theory raised for the first time on appeal — that placing a towel on the spill and then leaving made the hazard worse — reinforcing the appellate rule that arguments must be preserved in the district court to be considered on appeal.

Impact and Implications

Although nonprecedential, this decision meaningfully reinforces how federal courts applying New York law are treating short-interval spill cases:

• One minute is too short, as a matter of law, to establish breach for failure to remedy a spill after notice, particularly where the retailer promptly initiates safety protocols (calls for assistance, requests warning devices and cleaning staff, and takes immediate, interim containment measures).
• Video evidence is decisive. Surveillance that fixes the notice-to-injury interval and documents responsive steps often eliminates triable issues and supports summary judgment. Retailers should preserve and produce footage; plaintiffs should scrutinize it for any gap, delay, or exacerbating conduct.
• Nature-of-hazard calibration. The court’s comparison to life-threatening hazards signals that reasonableness is context-sensitive. More extreme dangers might require more immediate, robust precautions; ordinary slip hazards generally allow for brief response time.
• Litigation strategy for plaintiffs. To resist summary judgment in transient-spill cases, plaintiffs typically need evidence of:
  • a substantially longer period between creation or notice and injury (supporting constructive notice or unreasonable delay),
  • creation or exacerbation of the hazard by the defendant’s conduct (which can obviate the notice requirement), or
  • deficient safety protocols or a recurrent-condition theory supported by specific proof of inadequate inspections or practices.
• Issue preservation matters. Arguments that an employee’s actions worsened the hazard must be raised in the district court. If preserved, such a theory could reframe the analysis from “failure to remedy in time” to “creation/exacerbation,” where notice is not required and summary judgment is harder to obtain.
• Operational guidance for retailers. Establish and train on immediate-response protocols, including:
  • instant radio call for assistance and cleaning personnel,
  • deployment of warning cones or barriers as soon as practicable,
  • interim containment measures that do not increase risk, and
  • diligent preservation of video evidence to document timelines and responses.

Complex Concepts Simplified

• Summary judgment: A way to end a case before trial when, even taking the nonmoving party’s version of facts as true, the law requires judgment for the other side. No trial is needed if no reasonable jury could find for the nonmovant.
• Actual vs. constructive notice: “Actual notice” means the defendant actually knows about the hazard (e.g., someone informs an employee). “Constructive notice” means the hazard existed long enough and was visible enough that the defendant should have discovered it through reasonable care.
• Reasonable time to remedy: Even with notice, a defendant is liable only if it had enough time, in the circumstances, to fix or secure the condition. Seconds or a couple of minutes usually are not enough for transient spills in retail settings.
• Creation/exacerbation of hazard: If the defendant or its employees created the dangerous condition or made it worse, the plaintiff need not prove notice or time to remedy; the focus shifts to whether the conduct itself was negligent.
• Forfeiture of arguments on appeal: New arguments generally cannot be introduced for the first time on appeal; they must be raised in the trial court to be preserved for appellate review.
• Nonprecedential summary order: This order can be cited under FRAP 32.1 and Local Rule 32.1.1 but does not have precedential effect; it is persuasive rather than binding authority.

Conclusion

The Second Circuit’s summary order in Kissoon v. Wal-Mart underscores a consistent theme in New York premises liability: timing matters, and very short intervals between notice and injury typically cannot sustain a negligence claim for failure to remedy a transient spill. Here, the approximately one-minute window, combined with the store’s prompt, documented response, foreclosed any reasonable finding of breach.

Key takeaways include the decisive value of surveillance video in fixing timelines, the continuing vitality of New York’s “reasonable time to remedy” line of cases (finding two to three minutes insufficient as a matter of law), the importance of context and hazard severity in calibrating reasonableness, and the critical need to preserve all legal theories in the trial court. For retailers, disciplined response protocols and documentation remain the best defense; for plaintiffs, proof of longer intervals, exacerbating conduct, or systemic safety failures may be necessary to avoid summary judgment in similar slip-and-fall cases.