First Department Continues Its Review of Slip and Fall Notice Cases.
March 22, 2013 Posted By Trial Practice
Recently the First Department came out with three separate decisions regarding slip and fall cases, all of which are instructive to the practioner. The first, Evangelista v. the Church of St. Patrick,2013 Slip Op 01209 (1st Dept. 2013), affirms one lower court’s granting summary judgment to the defendant. The plaintiff claimed she fell after she slipped on a patch of ice on the sidewalk outside the premises. Defendant established that the maintenance supervisor had inspected the sidewalk 50 minutes before the plaintiff’s fall and saw no ice to remove and no need for salt. The plaintiff testified but she was unable to establish that the defendant either created the condition through its negligent snow removal and ice removal before the incident or even that the ice existed for a sufficient period of time for the defendant to discover and remedy the condition.
In Perez v. Abbey Associates Corporation, 2013 N.Y. Slip Op 01212 (1st Dept. 2013), the First Department reversed the lower court’s refusal to grant summary judgment to the defendant. Plaintiff testified that other than rain water on the steps in question, she did not see any other dangers or unsafe conditions. Yet, the plaintiff testified that she slipped and fell as a result of the rain water. Defendants had established that it was raining until approximately one hour before the incident and that there were no violations regarding the stairs. The court found that the defendants had demonstrated that they neither caused nor created the condition which was the proximate cause of plaintiff’s injury. The plaintiff had retained an expert. The court found that the “letter” from the expert was insufficient to sustain her burden. The expert failed to demonstrate that the alleged building code violations were applicable to the exterior stairs where plaintiff fell. Again, this case underscores the importance of having your expert know exactly what she must examine and how it applies to the facts at hand.
The last case, Savio v. Rose Flower Chinese Restaurant, Inc., 2013 N.Y. Slip Op 01210 (1st Dept. 2013), Defendant again prevailed in their summary judgment motion. The defense established that the claimed defect, “a warn and slippery step” at the restaurant’s entrance was not actionable. Defense had established that there were a lack of prior complaints or falls relating to the step and a lack of any claimed structural defect.
All these cases point to the need for a facts specific examination of what occurred, when it occurred and when the conditions developed, and the plaintiff’s knowledge or lack thereof.