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Interview, Depose or Obtain Affidavits from Key Witnesses to Avoid “Questions of Fact” on Summary Judgment Motions

April 20, 2016

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Slip and fall accidents are among the most common in personal injury lawsuits. When moving for summary judgment, defendants bear the burden of proving that they kept the premises in a reasonably safe condition, did not create the dangerous condition, or have actual or constructive notice of such condition. In summary judgment motions, defense counsel should be mindful to use a sufficient testimony to demonstrate this lack of notice such that there can be no issues of fact.
In <a href="http://www.newyorklawjournal.com/id=1202754692011/Stephanie-Carota-Plaintiff-v-Hess-Corporation-Defendant-60319?slreturn=20160318195831"><em>Carota v. Hess Corp</em></a>., plaintiff sued after she slipped and fell at the defendant’s gas station. Plaintiff argued that defendant was negligent in failing to properly maintain the premises because she slipped on a puddle of water and gas/oil while fueling her vehicle. In its motion for summary judgment, defendant argued that it had no notice of the dangerous condition. The gas station attendant testified that she had checked the pumping area, as required, when her shift began at 5:00 a.m. and she did not see anything out of the ordinary. The gas station required its employees to perform an inspection of the pump areas on an hourly basis and two other employees <em>may</em> have inspected the pumping area prior to the accident. However, the Court noted that any evidence of those two employees’ inspections was inadmissible hearsay.
The Court reasoned that when viewing all of the evidence in the light most favorable to plaintiff, the record contained questions of fact as to whether the defendant’s employees had undertaken the required hourly inspections. Consequently, the Court denied the defendant’s motion as it could not find that there was no notice of the water and gas/oil puddle near the pump.
This case should serve as a reminder to defense counsel to timely seek the depositions of any and all key fact witnesses. In <em>Carota</em>, had the defendant deposed the other two gas station employees, their testimony would have been part of the record and admissible evidence as to whether the gas station had notice of the water/gas/oil puddle. Such testimony could have persuaded the Court to grant summary judgment and dismiss the plaintiff’s claims outright.
Thanks to Jeremy Seeman for his contribution to this post.
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