Sometimes, decisions on a particular issue seem to come down in bunches. And that is exactly what seems to be happening regarding slip and fall claims in New York, and the defendants' motions to dismiss those claims.
To reiterate, here's the rule, as articulated in the August 4 opinion in Spector v. Cushman & Wakefield, Inc. by New York's Appellate Division, First Department (which covers Bronx and New York County):
"The injured plaintiff allegedly slipped on a patch of black ice on the sidewalk abutting Citibank's premises. Because Citibank did not refute plaintiffs' contention that the dangerous condition existed, it was required to establish that it did not cause or create the condition or have actual or constructive notice of it (see Lebron v Napa Realty Corp., 65 AD3d 436, 437 ). Citibank has failed to meet its burden with respect to actual or constructive notice of the ice because it proffered no affidavit or testimony based on personal knowledge as to when its employees last inspected the sidewalk or the sidewalk's condition before the accident."
To be clear, this decision does not mean that the plaintiff is out of the proverbial woods in terms of proving her case. As noted in "How to Win the Battle But Lose the War in a NY Slip/Trip & Fall Case," unlike at the dispositive motion stage - like the decision above - the plaintiff will be required to prove at trial that the defendant was negligent with respect to the maintenance of the area.
And very often, that is not such a simple thing to do.
Category: Slip / Trip and Fall Accidents
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