The New York Supreme Court, Appellate Division, Second Department in Bergin v Golshani, 2015 NY Slip Op 06103 [130 AD3d 767], denied a defendant’s motion for summary judgment to dismiss a cause of action alleging negligence.
In the slip-and-fall case, the plaintiff sought to recover damages for personal injury for defendant’s failure to inspect the area where plaintiff was injured. Here, the plaintiff fell on a loose piece of slate on a slate stone landing. Nassau County Supreme Court denied the defendant’s motion for summary judgment to dismiss the plaintiff’s cause of action alleging negligence. The defendant’s cross-appealed the court’s decision denying its motion for summary judgment to dismiss the cause of action.
Here, the issue is whether the defendant created the alleged defect or had actual or constructive notice of the defect which allegedly caused the plaintiff’s injury. A defendant landowner, who makes a motion for summary judgment in a slip-and-fall case, has the burden of initially showing that it did not create the defect that the plaintiff alleges caused the injury. In addition, the defendant must establish that it did not have actual or constructive notice of the alleged defect.
In order for a defendant to establish that it lacked constructive notice of the defect, and thus is potentially not liable for failure to correct the defect, the defendant must establish several factors. According to the Court, in order to constitute constructive notice, a defect must be visible, apparent, and it must exist for a long period of time that would permit the defendants to discover and correct the defect. In order to disprove constructive notice of a visible defect, the defendant has to offer some type of evidence as to the condition of the area when it was last cleaned or inspected at about the same time the plaintiff slipped and fell. For example, the defendant may produce witnesses that worked in the same area where the alleged defect was located to testify as to the condition of the area. On the other hand, if the defendant can illustrate that the defect was latent, then constructive notice cannot be imputed. A defect is considered to be latent when it would not have been discovered after a reasonable inspection of the area.
Here, the defendant established that it did not create or have actual notice of the loose piece of slate on the slate stone landing, which caused the plaintiff to fall. However, there was insufficient evidence as to when the defendant last inspected the landing before or around the time of the accident. In addition, the defendant could not prove that the loose piece of slate was a latent defect. That is, that the defect could not have been discovered after a reasonable inspection. Therefore, the defendants in this case failed to prove that they lacked constructive notice of the loose piece of slate on the landing.
In sum, the defendant did not establish that they lacked constructive notice of the loose piece of slate on the landing, they did not prove that the piece of slate was a latent detect, and they did not produce sufficient evidence as to the last inspection of the landing before accident took place. Due to the defendant’s failure to meet their burden of proof, the court denied the defendant’s motion for summary judgment to dismiss the plaintiff’s cause of action alleging negligence.
If you or a loved one has been injured on someone else’s property, contact the skilled personal injury attorneys at the Law Offices of Thomas L. Gallivan, PLLC today to discuss your potential claim.