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No Notice, No Negligence (NY)

July 17, 2018

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In <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/07/Bombino-Munroe-v-Church-of-St.-Bernard.pdf">Bombino-Munroe v Church of St. Bernard</a></em>, the Appellate Division, Second Department reviewed a Supreme Court decision concerning notice in a slip and fall on ice case where the plaintiff alleged the defendant was negligent.
The plaintiff slipped and fell near the rear entrance of her child’s preschool.  Specifically, the plaintiff testified that she used the front entrance to enter the building and dropped off her son at his class.  She was attempting to leave the premises through the rear entrance when the slipped on ice.  A lawsuit was filed in Westchester County Supreme Court.  The preschool director testified that she entered the building through the rear entrance about 90 minutes prior to the incident, and she did not see any ice on the ground. The injured plaintiff testified that she did not see the ice before she fell.
The defendant preschool moved for summary judgment, arguing that the lawsuit should be dismissed because the preschool did not have the requisite notice of the icy condition to be held liable in this accident.  The Supreme Court denied this motion, finding that there was a triable issue of fact as to whether the defendant had constructive notice of the alleged ice condition.
On appeal, the Appellate Division, Second Department, discussed the law as to notice.  The law is that “a property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident <strong><u>or</u></strong> had actual or constructive notice of its existence.  In this case, the plaintiff did allege the defendant created the icy condition; so the only way the preschool could be liable is if it had notice.
After reviewing the evidence, the Appellate Division concluded that the Supreme Court erred in its decision and should have dismissed the lawsuit because the preschool did not have actual or constructive notice that there was an icy condition.  In addition, the Appellate Division reaffirmed the principle that general awareness that snow or ice may be present during winter months is legally insufficient to constitute notice of the particular condition that caused the injured plaintiff's fall.   Thanks to George Parpas for his contribution to this post.  Please email <a href="mailto:VTerrasi@wcmlaw.com">Vincent Terrasi</a> with any questions.

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