Blog

In a New York slip or trip and fall case, it is common practice for a defendant property owner or independent contractor to seek summary judgment, i.e., an order from the court dismissing the action, before trial. Some of the more common bases upon which they are likely to seek summary judgment may be one or more of the following:

There was nothing wrong with the property;
If there was something wrong (in legalese, "defective") with regard to the condition of the property, it was a minimal defect, and therefore not actionable as a matter of law;
If the property was defective, and the defect wasn't minimal, there is no reason that the defendant either knew or should have known about the defect before the accident (this doctrine is also known as "actual or constructive notice").

This is where things can get tricky for a plaintiff. Although a court may deny the summary judgment motion for any number of reasons, there is one in particular that should give a plaintiff great pause rather than cause for celebration: where the court finds that the defendant simply did not meet its burden of proof on the motion.

To clarify: unlike at trial, where the plaintiff bears the burden of proof on each element of his or her claim, the roles are reversed at the motion stage, because in that case the defendant seeks the equivalent of a "trial on the papers." Stated differently, in a slip or trip and fall case, the defendant must affirmatively prove its freedom from negligence - i.e., that it exercised proper care, and had no actual or constructive notice of any defect - before it will be entitled to summary judgment.

Consequently, defeating a summary judgment motion on this ground alone, the victory may well prove short-lived; after all, the plaintiff will once again bear the burden of proof at trial. And if the plaintiff escapes summary judgment at the motion stage by the skin of his teeth, chances are he may not be as lucky at trial, when the burden of proof is his.

Author of the Free consumer guide to New York accident cases, "Why Most Accident Victims Do Not Recover the Full Value of Their Claim," Long Island and Queens, New York slip and fall, trip and fall and defective sidewalk and snow and ice accident lawyer Jonathan Cooper is available to answer your questions regarding how to prove New York City or a snow removal contractor's liability for snow and ice removal under New York law. For additional information on these topics, please feel free to contact his main office in Nassau County, Long Island at 516-791-5700.