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Lack of Inspection Evidence Properly Results in Denial of Summary Judgment for Defendants in Personal Injury Slip-and-Fall Case

by mjpospis on August 1, 2015

in Personal Injury, Premises Liability, Slip/Trip and Fall

A recent Second Department decision, Bergin v. Golshani, is instructive on the issue of when summary judgment is properly awarded to a defendant in a slip-and-fall case.

Here is the law:

A defendant landowner moving for summary judgment in a slip-and-fall case has the initial burden of establishing that it did not create the alleged defect or have actual or constructive notice thereof. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendants] to discover and remedy it. When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed. In demonstrating that it lacked constructive notice of a visible and apparent defect, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff slipped and fell.

The court then explained why defendants were not entitled to summary judgment:

Here, the deposition testimony of the defendant Afshin Golshani established, prima facie, that the defendants did not create or have actual notice of the allegedly loose piece of slate on the slate stone landing which allegedly caused the plaintiff Patrick Bergin to fall. However, in the absence of any evidence as to when the defendants last inspected the landing before the accident, or that the allegedly loose piece of slate on the landing was a latent defect that could not have been discovered upon a reasonable inspection, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly loose piece of slate on the landing.

Categories: Personal Injury, Premises Liability, Slip/Trip and Fall

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