The United States Supreme Court has adopted a liberal test for assessing what neglect is excusable under Fed. R. App. P. 4(a)(5), emphasizing that the determination is at bottom an equitable one, taking account of all relevant circumstances, including: (1) the danger of prejudice to the non-moving party, (2) the length of delay and impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the moving party, and (4) whether the moving party acted in good faith. The United States Court of Appeals for the Second Circuit has emphasized, however, that it is the third factor-the reason for the delay-that predominates, and the other three are significant only in close cases.
On a dark, rainy evening, the pedestrian fell on a section of sidewalk abutting a locked gate that separated the sidewalk from a dumpster storage area located behind the restaurant. According to the assistant manager of the restaurant, about twice a day employees place trash bags filled with refuse such as food containers, food preparation materials, and uneaten food into the dumpster. The dumpsters were dragged across the sidewalk to be emptied into garbage trucks and the dragged back over the sidewalk to the storage area. After her fall, the pedestrian discovered grease on her clothes and shoes, and a police officer who responded to the accident told her she had slipped on grease on the sidewalk. She filed a personal injury claim against the restaurant under the claim that because the restaurant made "special use" of the sidewalk and therefore could be charged with constructive knowledge, and responsibility for, the hazardous condition. The district court, however, dismissed her claim. The district court concluded that she failed to raise a material issue of fact as to the restaurant's responsibility for a sidewalk condition that allegedly caused her to fall and suffer injuries. The case was appealed to the United States Court of Appeals for the Second Circuit.
Is the "special use" doctrine applicable?
The court held that the "special use" doctrine was not applicable since the restaurant's use of the sidewalk to move a dumpster was routine, not special. However, the court concluded that, for summary judgment purposes, the pedestrian had presented sufficient circumstantial evidence to render the probability that someone other than the restaurant was responsible for the grease sufficiently "remote" or "technical" in comparison to the explanation she offered.