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Lack of Specific Defense Testimony Prompts SJ Reversal in Premises Case (NY)

September 21, 2017

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In a premises liability context, a property owner must establish that they did not create a dangerous condition that allegedly caused a plaintiff’s accident and that they did not have actual or constructive notice of the condition. In recent years, Court have raised the burden of proof for defendants to establish that they did not have constructive notice of a condition.
In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2017/09/Lombardo-v.-Kimco.pdf">Lombardo v. Kimco</a> , LLC,</em>2017 NY Slip Op 06531 (2d Dept. 2017), plaintiff slipped and fell on a wet and slippery substance on the floor of the defendants restaurant, Carrabba’s Italian Grill, LLC. The defendants established through testimony and affidavits that they did not create the wet or slippery condition and that they had a regular inspection and cleaning procedure in place so could not have had constructive notice. The Supreme Court agreed and granted summary judgment in the defendants favor.
The Appellate Division, Second Department, overturned the decision because the defendant failed to establish that the cleaning and inspection procedure was followed on the date of the accident and when the area had last been cleaned and inspected prior to the accident.  The Court found that without specific testimony from someone who cleaned or inspected the premises prior to the accident the defendant failed to establish that they did not have constructive notice of the condition.  In other words, the existence of maintenance protocols was not enough;   the property owner needed to show that it followed those protocols.
This increased burden for a defendant poses difficulty when a defendant is trying to establish lack of constructive notice. In most instances, the lawsuit has arisen years after the accident and the person who did the inspection may no longer be employed by the defendant. It is incumbent upon defendants to get statements from their employees when they are first notified of a loss and to keep in contact with them even if they leave. If defense counsel can't locate the former employee who actually did the cleaning or inspection, summary judgment will be an uphill battle.  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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