Slip/Fall Case Survives Summary Judgment; Court Cites Porter’s Failure to Mop the Area Despite Noticing it Was Wet

In Sager v. Waldo Gardens, Inc., 2018 NY Slip Op 07359 (App. Div. 1st Dept. Nov. 1, 2018) – a personal injury slip-and-fall case – the court affirmed the lower court’s denial of summary judgment to the defendant. The outcome, like so many cases of this type, turned on the often difficult-to-prove issue of constructive notice.

From the decision:

Defendants failed to establish entitlement to judgment as a matter of law in this action where plaintiff alleges that she slipped on an oily or slippery condition on a wheelchair access ramp located on the basement level of defendants’ building. She testified that she could not see the condition before she fell because she was pushing a shopping cart in front of her, but afterwards she saw a small, shiny puddle of oil.

Defendants failed to make a prima facie showing that they lacked constructive notice of the hazardous condition. Defendants’ witness, a building porter, testified that it was another porter’s job to clean the ramp daily, but he did not know when the ramp was last inspected, which was insufficient to establish that an inspection and cleaning took place on the day of the accident (see Gautier v 941 Intervale Realty LLC, 108 AD3d 481 [1st Dept 2013]; Ross v Betty G. Reader Revocable Trust, 86 AD3d 419, 421 [1st Dept 2011] ). The porter also testified that he had walked up and down the ramp many times before plaintiff’s fall. Although he noticed that it was wet, he did not clean or mop the ramp, and did not state whether he inspected it or whether he observed an oily condition like the one that was visible to plaintiff after she fell.

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