Slip and fall cases are fairly common in the personal injury litigation world. That does not make them simple or easy, however. A recent slip and fall decision by the Appellate Division, Second Department, can help to detail what it takes to litigate- and win – a slip and fall action.
In Francis v. Super Clean Laundromat Inc. the plaintiff, Cherry Francis, alleged that she tripped and fell “over a curled up mat on the floor of a Laundromat operated by the defendants Super Clean Laundromat, Inc., and Guy R. Corporation.” Ms. Francis lost in the lower court. She appealed this decision to the Second Department.
Classically, a slip and fall case is exactly what it sounds like: the plaintiff injured him or herself by slipping on some sort of defect or dangerous condition, which was owned or maintained by the defendant. Often at issue in such cases is the cause of that defect. Generally, if the defendant was the actual cause of a dangerous condition, he or she will be held liable. For instance: the defendant spilled liquid on the floor of his store – if someone slips, the defendant will most likely be found liable. In many cases, as in Francis, the issue is not as clean cut. Cases such as Francis illustrate situations in which the defendant did not have actual knowledge of the defect, but rather only should have known about it.
Ms. Francis lost in the lower court because she was, per the court, unable to show that the defendants had either actual or constructive notice of the hazardous condition – in this case, the rolled up mat. So it is undisputed that the defendants, the Laundromat and its owner, did not actually roll the mat up themselves, or place it in a dangerous spot. However, a plaintiff can still win if she can show that the defendants knew about the condition and did nothing (actual notice), or would have known about it if they behaved in a “reasonable” way (constructive notice).
Ms. Francis won on appeal for several reasons. Super Clean attempted to show lack of notice by introducing an affidavit by the general manager stating that he did not know about the mat. However, as the court points out, this affidavit should not have been considered at all, since this manager’s identity was not disclosed to the plaintiff during the discovery process. However, the court also found that even if that affidavit had been allowed, the defendants would still have lost. This is a key point in a case like this: the defendants never told the court when the last cleaning or inspection of the area containing the mat occurred.
Let’s review that point in a bit more detail. “Constructive notice” means that the defendant should have known about the dangerous condition. If the area they owned or controlled was being cleaned and/or inspected regularly, as any area open to the public should be, the defect would have been discovered and thus could have been remedied. If the defendant had been able to show that they regularly looked over that area and still did not find the defect, they would have won. In that scenario, reasonable care would not have uncovered the defect, which was caused by someone else (perhaps another customer), and thus they should not have to pay.
Here, though, by not showing the court that they performed regular inspections, they were unable to show the level of reasonable care that we would expect a business owner to exhibit. This lack of reasonable care caused Ms. Francis’ injury. As you can see, slip and falls are not as simple as they seem at first glance. If you believe that you have been the victim of a negligent owner or operator and were injured as a result, contact our firm – complex cases are our specialty.
Francis v Super Clean Laundromat, Inc., 2014 NY Slip Op 03650