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Testimony About General Cleaning Practices Insufficient to Establish Summary Judgment for Defendant in Slip/Fall Personal Injury Case

by mjpospis on February 21, 2017

in Personal Injury, Slip/Trip and Fall

In Jeremias v. Lake Forest Estates, No. 2015-08003, 2017 WL 424673 (N.Y. App. Div. 2d Dept. Feb. 1, 2017), a personal injury slip/trip-and-fall case, the court affirmed the lower court’s denial of defendant’s motion for summary judgment.

The law, as summarized by the court:

A defendant moving for summary judgment in a slip-and-fall case has the burden of demonstrating, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. To meet its initial burden on the issue of lack of constructive notice, the defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall.

Applying the law to the facts, the court held:

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition that caused the plaintiff to fall. The deposition testimony of the defendant’s caretaker, submitted in support of the motion, did not establish when the accident site was last inspected in relation to the plaintiff’s fall. The caretaker merely testified about general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, which is insufficient to establish a lack of constructive notice.

Categories: Personal Injury, Slip/Trip and Fall

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