Wade Clark Mulcahy LLP

<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2021/04/Smith.pdf">Smith</a> v Montefiore Medical Center,</em> 2021 NY Slip Op 01872 (1st Dept. 2021), the First Dept. reviewed a denial by the lower court of a defendant’s motion for summary judgment. Plaintiff alleged that he slipped and fell on dirty ice in front of the emergency room at the Montefiore Hospital. The spot of the fall was covered by a canopy. Montefiore moved for summary judgment, noting that two of its employees testified that snow and ice does not normally accumulate on the spot where plaintiff fell. One Montefiore employee testified that snow has not accumulated on that spot in his 48 years of employment, while another Montefiore employee testified that he had not seen any snow or ice there in his 13 years of employment. The employees testified as to the hospital’s general snow and ice removal procedures, but did not give specific testimony about when the last inspection occurred in that specific area.</p>
<p style="text-align: justify;">As you know, a plaintiff can prove constructive notice of a dangerous condition if they show that the condition existed at the location for a sufficient amount of time that the defendant could have reasonably inspected it and remedied the condition. The court determined that the denial of summary judgment was proper because Montefiore failed to submit evidence establishing that a dangerous condition did not exist prior to the accident. The court stated, “[a] showing of general cleaning procedures is insufficient to satisfy the burden of demonstrating lack of constructive notice.”</p>
<p style="text-align: justify;">Montefiore argued that it does not keep specific records for that location because it was not exposed to the weather. However, one of the defendant’s witnesses admitted that he did, on rare occasions, see snow on the spot where plaintiff fell, thus defeating Montefiore’s argument. This case highlights the difficulty for a property owner in proving a lack of constructive notice. For a summary judgment dismissal, a property owner must show conclusively that it had no actual or constructive notice of the dangerous condition. In almost all slip and falls involving rain and or snow/ice, a premises owner must be dutiful to keep precise records of inspections and maintenance on their property.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this post. Please contact <a href="mailto:Haquino@wcmlaw.com">Heather Aquino</a> with any questions.</p>