Thursday, December 24, 2015

Constructive notice in a slip and fall action.

Practice point:  The Appellate Division reversed, on the law, and denied defendant's motion for summary judgment in this action resulting from plaintiff's fall on an oil patch in defendant's parking lot.

A defendant who moves for summary judgment in a slip and fall case has the initial burden of making a prima facie showing that it did not create the allegedly hazardous condition that caused the accident, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the accident.  Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.

Student note:  The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.

Case:  Bruni v. Macy's Corporate Servs., Inc., NY Slip Op 09238 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Failure to identify the cause of the fall.