Friday, June 19, 2015

A motion to dismiss a slip-and-fall action, and open and obvious conditions.

Practice point:  The Appellate Division affirmed the denial of defendant's motion to dismiss this action for personal injuries sustained when plaintiff tripped over an extension cord.

The Appellate Division found in the record presents triable issues of fact as to whether defendants created the condition that caused plaintiff's fall. A premises' security manager testified that, after viewing video footage from two days before the accident, he observed defendants' employees working at the location the weekend before the accident. In addition, there are issues of fact as to whether defendants had constructive notice of the extension cord that was on the floor prior to the accident. Defendants never established when their employees last inspected the location prior to the accident, even though their witnesses testified that defendants inspected the area.

Student note:  The fact that the extension cord was bright yellow, the floor was white, and the cord was seen by two nonparty witnesses prior to the accident does not establish that the condition was open and obvious. Plaintiff testified that the accident did not happen until after he passed the portable air conditioning unit, and that the air conditioning unit obscured a view of the extension cord.

Case:  DiMarzo v. Jones Lang LaSalle Ams. Inc., NY Slip Op 04924(1st Dept. 2015)

Here is the decision.

Monday's issue:  The scaffold law.