Wednesday, November 25, 2015

Summary judgment in a slip-and-fall action.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff alleges that he fell in the boiler room of the building where he worked as a maintenance worker when he attempted to back out of a tight area next to the boiler and his pants got caught on a brace or bracket supporting a pipe. Defendant, the owner of the building, established its entitlement to summary judgment by submitting photographic and testimonial evidence showing that the brace or bracket was not a defective condition, but was open and obvious, and not inherently dangerous. As was shown in the photographs, the condition was plainly observable and did not pose any danger to someone making reasonable use of his or her senses.

Student note:  Although plaintiff did not see the brace or bracket when he was backing up, it was not hidden or obscured from view and thus did not constitute a trap or snare. Contrary to plaintiff's arguments, defendant was not required to present expert testimony to meet its initial burden, and the issue of notice is irrelevant since there was no defective or dangerous condition in the boiler room.

Case:  Acosta v. Gouverneur Ct. L.P., NY Slip Op 08125 (1st Dept. 2015)

Here is the decision.

Friday's issue:  The Whistleblower Law.