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Mere Presence Of A Hazard Does Not Create Liability

August 18, 2011

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In <em>Atashi v. Fred-Doug 117, LLC</em>, the First Department reaffirmed the lower court’s dismissal of the plaintiff’s compliant, holding that the defendants did not create the alleged dangerous condition that caused the plaintiff’s accident, nor did they have actual or constructive notice. Atashi, a security guard at the defendants’ building, tripped and fell over a large flatbed dolly that tenants sometimes borrowed from the building staff. The court held that the presence of the dolly alone did not equate liability onto the defendants. Atashi conceded that the dolly was not in the hallway five hours prior to the accident, and he would have been the only employee on site that day responsible for inspecting the location on the defendants’ behalf. Thus, absent any evidence to establish that the defendants created the condition, or would have been made aware of the condition by another building employee, his complaint had to be dismissed.
Thanks to Lora Gleicher for her contribution to this post.
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