Monday, September 8, 2014

The plainitff's identifying the cause of the fall.

Practice point:  Here, the defendants failed to establish, prima facie, that the plaintiff could not identify the cause of her fall. In support of the motion and cross motion, the defendants relied on the transcript of the plaintiff's testimony at the General Municipal Law § 50-h hearing.  However, the transcript failed to eliminate triable issues of fact as to plaintiff's establishing the cause, as she testified that there was ice at the place where she fell.

Student note: In a slip and fall action, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of the fall. If a plaintiff is unable to identify the cause of a fall, any finding of negligence would be based on impermissible speculation. That does not mean that a plaintiff must have personal knowledge of the cause of the fall, but only that a plaintiff's inability to establish the cause -- by some admissible proof -- is fatal to a cause of action based on negligence.

Case:  Cipriano v. City of New York, NY Slip Op 05940 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Class certification.