Wade Clark Mulcahy LLP

In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/04/Diaz-v.-SCG-502-LLC.pdf">Diaz v. SCG 502, LLC</a></em>, 2023 NY Slip Op 01779<em> (2d Dept. 2023)</em>, plaintiff alleged serious injuries from a slip and fall on an interior staircase in an apartment building.  NY law permits dismissal of slip-and-fall cases if “the plaintiff did not know what caused the fall" (<em>Lamour v. Decimus</em>, 118 AD3d 851, 851; <em>see Aleman v 760 8th Ave. Rest., Inc.</em>, 187 AD3d 1106, 1106; <em>Kerzhner v. New York City Tr. Auth.</em>, 170 AD3d 982, 983). "[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (<em>Rivera v. J. Nazzaro Partnership, L.P.</em>, 122 AD3d 826, 827; <em>see Madden v. 3240 Henry Hudson Parkway, LLC</em>, 192 AD3d 1095, 1096).  However, the New York appellate court recently let a plaintiff off the hook

At her deposition, plaintiff testified she slipped and fell on a “wet step,” but did not know the precise type of liquid. While trial court granted summary judgment, the Second Department overturned that decision reasoning that the precise type of liquid was inconsequential to her claim of negligence of injury caused by a hazardous substance on a public space. Here, the defendant failed to establish, prima facie, that the plaintiff did not know what caused her to fall. “Contrary to the defendant's contention, the plaintiff's alleged inability to identify the "precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall (<em>Burrus v. Douglaston Realty Mgt. Corp.</em>, 175 AD3d 461).”

The Second Department’s determination shows that a slip and fall on a wet surface does not require the claimant to specifically identify the hazardous substance that caused her to fall. Courts will allow a plaintiff to have her day in court so long as she can testify, generally, as to what caused her to fall in a premises liability claim.

Thanks to Raymond Gonzalez for his contribution to this post.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.