In Wilkins v. West Harlem Group Assistance, Inc., 2018 NY Slip Op 08247 (App. Div. 1st Dept. Dec. 4, 2018) – a premises liability personal injury case – the court reversed the lower court’s decision granting summary judgment to defendant.
In sum, plaintiff was injured when, after attempting to close a window on property leased by plaintiff’s employer, “the whole window structure came out and crashed over plaintiff’s head.”
In the ensuing lawsuit, defendant moved for summary judgment, arguing lack of notice and the inapplicability of the doctrine of “res ipsa loquitur.” The lower court granted the motion on both grounds.
Initially, the First Department held that “defendant met its prima facie burden on lack of constructive notice of a dangerous condition”, noting that “[w]hile it is disputed that defendant never inspected the windows since installation in 2004, it did not have an affirmative duty to conduct reasonable inspections[.]”
The court held, however, that summary judgment should not have been granted as it was:
We find that an issue of fact exists as to the applicability of the doctrine of res ipsa loquitur, which allows for an inference of negligence to be drawn on the occurrence of an accident. The doctrine requires that a plaintiff must demonstrate that the “event is the kind which ordinarily does not occur in the absence of negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and [that] it was not due to any voluntary action or contribution on the part of the plaintiff” (Dawson v National Amusements, 259 AD2d 329 [1st Dept 1999]).
Here, “common experience” dictates that a window being shut does not simply fall out absent negligence. In order to establish exclusive control, plaintiff is not required to show that defendant “had sole physical access” to the window (Dawson, 259 AD2d at 330; Hutchings v Yuter, 108 AD3d 416 [1st Dept 2013] [plaintiff demonstrated exclusive control notwithstanding others had access to the door that fell and struck plaintiff] [citing Singh, 72 AD3d 272]). Further, [*2]there remains a question of fact whether plaintiff did something to contribute to the window falling on him.