Friday, May 23, 2014

Dismissal of a slip and fall claim.

Practice point:  Plaintiff alleged in her bill of particulars, and testified at her deposition, that she was injured when she slipped on an oily substance on the floor of defendant's grocery store. Defendant established prima facie its lack of constructive notice of the alleged dangerous condition with its porter's affidavit stating that he inspected the accident site a half hour prior to plaintiff's fall and that there were no slipping hazards present, together with its manager's deposition testimony regarding cleaning and mopping routines. Plaintiff did not contest defendant's evidence that it inspected for slipping hazards on the premises one-half hour before the accident but did not find any, and so she failed to raise a triable issue of fact

Student note:  Contrary to defendant's contention, plaintiff's supplemental bill of particulars and affidavit in opposition to the summary judgment motion did not raise a new theory of liability concerning the condition of the floor, but merely expanded on the original theory that plaintiff slipped on a foreign substance by alleging that "areas of missing or broken tiles allowed foreign substances to accumulate and remain on the floor."

Case:  Goodwin v. Western Beef Retail, Inc., NY Slip Op 03588 (1st Dept. 2014)

Here is the decision.

Tuesday's issue: Summary judgment in a dog bite case.