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Failure to Identify Specific Defect = Failure to Prove prima facie negligence (NY)

February 11, 2016

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This week, in <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/02/Gold-v.-35-E.-Assoc.-LLC.pdf" rel="">Gold v. 35 E. Assoc. LLC</a>, </em>2016 NY Slip Op 00875 (2016), the Appellate Division, First Department upheld partial summary judgment in favor of the property owner. In <em>Gold</em>, a trip and fall case, plaintiff and an eyewitness both testified that they did not know what caused plaintiff to fall and did not see any dangerous substance on the steps.
Plaintiff testified at a deposition and submitted an affidavit conceding that the alleged “black sticky substance” that caused the fall was not noticed until weeks after the alleged incident. The Court found that although plaintiff did eventually allege a specific substance or defect that caused the fall, the defendant made a <em>prima facie</em> showing that this cause was speculative at best and that plaintiff could not identify any actual cause of the fall that could be attributable to the defendant.
The plaintiff’s ability to identify the cause of a slip and fall incident is often an issue at the crux of a premises liability action. When testimony is speculative, or shows that the cause of the incident was not determined until well afterwards, courts sometimes find a triable issue of fact as to whether the defendants were negligent in failing to notice the defect.
The Court’s decision in <em>Gold</em> indicates that the Court may be taking a closer look at the testimony and evidence presented by plaintiff’s as to the causation of slip and fall accidents.  Thanks to Dana Purcaro for her contribution to this post.  Please email <a href="mailto:bgibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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