Wade Clark Mulcahy LLP

<p style="text-align: justify;"><em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/02/Kwan-v.-Confucius-Plaza-Tenants-et-al.pdf">Kwan v. Confucius Plaza Tenants, et al,</a> </em>No. 154794/2015, 2021 WL 419041 (NY Cty. Sup. Ct. Feb. 5, 2021) is a personal injury case, wherein Plaintiff alleged damages after a slip-and-fall in the lobby of her residential premises, which was owned and managed by defendants. Kwan was decided on summary judgment in favor of defendants, who were able to prove: “It wasn’t me.” How? Surveillance footage captured the entire incident.</p>
<p style="text-align: justify;">The accident occurred on a rainy day after Plaintiff and her daughter entered safely through the lobby’s vestibule and towards the elevators. Plaintiff and her daughter were carrying umbrellas, and the daughter was rolling a suitcase. The daughter entered the elevator safely, pulling her luggage along with her. As Plaintiff followed, she slipped on the exact spot where the suitcase had just traversed. The record contained conflicting testimonial evidence about the existence of warning signs, mats in the vicinity, and whether defendants had notice about the wet conditions that caused Plaintiff’s slip-and-fall. The <em>Kwan</em> Court did not buy Plaintiff’s account of the events.</p>
<p style="text-align: justify;">Under New York law, to establish liability in a slip-and-fall case, a “plaintiff must prove that defendant either created or had notice of the condition.” Here, Plaintiff could not create triable issues of fact to prevent dismissal on summary judgment. Defendants established, as a matter of law, they did not create the wet-floor condition. Specifically, the video footage, from the lobby, supported defendants’ theory – that Plaintiff and her daughter tracked water into the lobby vis-à-vis carrying wet umbrellas, walking with wet shoes, and pulling a wet suitcase. Plaintiff failed to provide countervailing evidence to these points. And defendants do not have an “obligation to provide a constant remedy” if water is “tracked into the building by individuals immediately preceding plaintiff.”</p>
<p style="text-align: justify;">Plaintiff also failed to create triable issues of fact that defendants had either actual or constructive notice the floor was wet. In terms of actual notice – defendants were never notified the floor was wet (or otherwise observed the floor being wet). In terms of constructive notice – “a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendants’ employees to discover and remedy it.” Here, Plaintiff failed to provide any evidence establishing how long the floor was wet before the accident. Additionally, the record was remiss of evidence that anyone else saw the floor being wet prior to the accident.</p>
<p style="text-align: justify;">The takeaway from <em>Kwan</em> is not novel: owners, managers, and operators of commercial and residential property should consider investing in surveillance cameras for the common areas of their respective premises. Doing so can save time and money, as it may permit prospective defendants to prevail on summary judgment by relying on the “it wasn’t me” defense. Of course, this type of defense can only be successful if prospective defendants comply with their legal duties under premises liability law. Otherwise, it could be defendants caught red-handed, letting water stay on the floor.</p>
<p style="text-align: justify;">Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>