IKEA Slip/Fall Case Continues

In Barris v. One Beard St., LLC, the Appellate Division, Second Department reversed the grant of summary judgment to defendants.

In this personal injury/premises liability case, “[t]he injured plaintiff, who was then 12 years old and accompanied by his father, allegedly slipped and fell on loose and broken pieces of asphalt as he was running toward an ice cream truck in the vicinity.”

The court explained the relevant law:

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. To meet their burden on the issue of lack of constructive notice, the defendants were required to offer some evidence as to when the accident site was last cleaned or inspected prior to the injured plaintiff’s fall. Mere reference to general cleaning practices, with no evidence regarding any specific cleaning or inspection of the area in question, is insufficient to establish a lack of constructive notice.

Applying the law to the facts, the court held:

Here, the affidavit of the Safety and Security Manager for the subject IKEA store, which was submitted in support of the defendants’ motion, only provided information about the store’s general cleaning and inspection procedures concerning the promenade, and did not show when the subject area had last been inspected or cleaned prior to the happening of the accident. Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the allegedly dangerous condition. Furthermore, the defendants failed to establish, prima facie, that the alleged condition was too trivial to be actionable, or was open and obvious and not inherently dangerous as a matter of law.

Further, the defendants failed to establish, prima facie, that the sole proximate cause of the accident was the injured plaintiff’s trip on his shoelaces. In support of this contention, the defendants submitted entries in the injured plaintiff’s hospital records. A hearsay entry in a hospital record as to the happening of an injury is admissible evidence, even if not germane to diagnosis or treatment, where, as here, it is inconsistent with another account provided by that party. However, there must be evidence connecting the party to the entry. Here, the deposition testimony of the injured plaintiff’s mother, who was with the injured plaintiff at the hospital, was equivocal as to what she heard the injured plaintiff say to hospital personnel. Furthermore, the injured plaintiff’s father testified at his deposition that he observed the injured plaintiff slip and fall on loose pieces of black asphalt, and that the injured plaintiff’s shoes were tied both before and immediately after the accident. Thus, the defendants’ submissions revealed a triable issue of fact as to whether the injured plaintiff made an admission that may be excepted from the hearsay rule and, if so, a triable issue of fact as to the cause of the injured plaintiff’s fall.

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