Let's be up front about this: many, if not most, slip and fall cases in New York fail.

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.

Following is a list of the 4 most common reasons that a slip and fall case may be dismissed:

  • 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"); and,
  • The plaintiff was unable to identify what defect caused her slip and fall.

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.

That said, and returning to our 4-prong list, the failure of the final prong may not inherently destroy the claim.

Why Not Knowing What Caused Your Fall May Not Be Fatal to a Slip and Fall Claim

It is generally true that you need to know how your accident occurred in order to prove your negligence case against a defendant. There are a few critical exceptions to this rule, however, which make clear that the mere fact that the plaintiff himself doesn't know with certainty (or can't testify) how his accident occurred does not sound an automatic death knell to his negligence case - at least under New York law.

Some of the best known examples of this would include where the plaintiff died, or is too young or otherwise not competent to testify as to how the incident occurred. Another example would be where the plaintiff was not conscious when the incident occurred, such as where the plaintiff was under anesthesia.

"So how does a plaintiff prove their negligence case under these circumstances?" you ask.

There are a few different possibilities.

  1. If the accident is a type that ordinarily cannot occur absent negligence, and the instrumentatility causing the accident remains under the exclusive custody and control of the defendant. This doctrine is commonly referred to by its legal Latin name of "res ipsa loquitur," which loosely translated means "the thing speaks for itself." For additional information on this doctrine, click on the hyperlink above.
  2. Generally speaking, this is the easier (and cleaner) way to prove the defendant's negligence, and that is through the testimony of other witnesses to the occurrence. But, as we are all well aware, that isn't always available (or possible).

Therefore, the best remaining option is often door #3, which is by way of circumstantial evidence. To that end, New York's courts have summarized this rule, particularly in the slip and fall context, as follows:

"While a plaintiff cannot speculate as to the cause of an accident (Holiday v. Hudson Armored Car and Courier Service, 301 AD2d 392 [1st Dept. 2003]), causation may still be established by circumstantial evidence. (Constantino v. Webel, 57 AD3D 472 [2nd Dept. 2008])."

Therefore, a plaintiff can sustain this burden by demonstrating that she sensed the matter upon which she tripped under her feet, and then observed that matter immediately after her fall. Under those circumstances, the courts have held that "This provides a sufficient nexus between the material observed and the cause of the accident. (Cherry v. Daytop VII, Inc., 41 AD3d 130 [1st Dept. 2007])."



Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer