Neither Party Entitled to Summary Judgment in Bar Stool Severed Fingertip Case

In McGough v. Cryan, Inc. (decided Nov. 27, 2013), the Appellate Division, Second Department held that the trial court properly denied defendant’s, and should have denied plaintiff’s, respective motions for summary judgment.

The court described the injury and the alleged condition causing it:

The tip of the plaintiff’s right ring finger was severed when he sat down on a bar stool at the defendant’s premises. A postaccident inspection of the stool revealed that the seat of the stool was not properly secured to the frame of the stool, which produced a gap when the stool was lifted by the seat. Two of the four screws connecting the seat to the frame were missing, and one of the two remaining screws was loose. The accident occurred a few hours after the bar had opened for business and, prior to the accident, no one had complained about the condition of the subject stool. The photographs of the subject stool showed that the seat was worn and frayed, and the foam underneath the seat cover was exposed at the right front corner of the seat. The photographs also showed that the condition of the screws was readily visible when the stool was flipped over.

The law provides:

In a premises liability case, the defendant property owner who moves for summary judgment has the initial burden of establishing that it did not create the defective condition or have actual or constructive notice of its existence. To provide 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 defendant’s employees to discover and remedy it.[C]onstructive notice will not be imputed where a defect is latent and would not be discoverable upon reasonable inspection.

Applying the law, the court held that the court properly denied the defendant’s motion for summary judgment dismissing the complaint, since

defendant failed to establish, prima facie, that it maintained its premises in a reasonably safe condition and that it did not create the alleged defective condition or have actual or constructive notice of it. The defendant failed to specify when it last inspected the subject stool prior to the accident. Additionally, the defendant failed to show that the alleged defective condition of the stool was latent.

It held that plaintiff was likewise not entitled to summary judgment on liability, since “plaintiff failed to establish, prima facie, when the stool allegedly became defective, and the issue of whether the defendant had constructive notice of the alleged defect should be submitted to the jury.”

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