Tuesday, January 19, 2016

An escalator accident, and summary judgment denied.

Practice point:  The Appellate Division affirmed the denial of defendant's motion for summary judgment in this action to recover damages for injuries allegedly sustained while plaintiff was riding an escalator in defendant's store.

As a property lessee and the store operator, defendant had a duty to maintain and repair the escalators. Therefore, to demonstrate its prima facie entitlement to judgment as a matter of law, defendant had to establish that it did not create the defective condition that caused the escalator to suddenly accelerate and then jerk, or have actual or constructive notice of that condition.  Defendant failed to do so. The deposition testimony of defendant's loss prevention agent failed to establish that the escalator was regularly inspected and maintained, or that defendant did not receive any prior complaints about the escalator.

Student note;  Since defendant failed to satisfy its prima facie burden, the motion is denied without consideration of the sufficiency of plaintiff's opposition papers.

Case:  Roberts v. Old Navy, NY Slip Op 09666 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A defendant's prima facie burden on causation.