Wade Clark Mulcahy LLP

<p style="text-align: justify;">To prevail on a summary judgment motion in a slip and fall action, a defendant has the initial burden of showing that it (a) did not create the hazardous condition and (b) did not have actual or constructive notice of its existence. In order to prove lack of constructive notice, a defendant must proffer evidence as to when the site was last cleaned or inspected prior to the accident. Conversely, a plaintiff may prove constructive notice by establishing that the alleged defect was visible, apparent, and existed for a sufficient length of time prior to the accident so that the defendant had time to discover and remedy it. However, a plaintiff’s claim will fail if their proofs are speculative, and they cannot satisfy the burden of proof with sufficient evidence.</p>
<p style="text-align: justify;">These issues were addressed in the recent Bronx County decision of <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/12/Torres-v.-Sanitation-Salvage-Corp..pdf">Torres v. Sanitation Salvage Corp.</a>,</em> 73 Misc. 3d 1214(A), 154 N.Y.S.3d 218 (N.Y. Sup. Ct. 2021). Plaintiff in that case was allegedly injured when she slipped on fruit and vegetable residue on a ramp at the Hunts Point Terminal Market. The market was owned by the City of New York and leased to Hunts Point, which then leased individual units to various produce vendors, including plaintiff’s employer.</p>
<p style="text-align: justify;">Hunts Point moved for summary judgment, asserting that it hired a sanitation service to clean the exterior areas of the market and that the area where plaintiff fell was cleaned just an hour prior to the accident. In her opposition, plaintiff argued that because her clothes were wet after the fall, a condition must have existed on the ramp that caused her to fall. However, the court determined that such evidence was insufficient to defeat the motion because there were no prior complaints made to Hunts Point and plaintiff testified at deposition that she never observed any residue in the area where she fell. Because plaintiff relied on “mere speculation” as to the cause of the fall and failed to show that the condition existed for a sufficient period of time prior to her accident, the court granted the motion and dismissed the claims against Hunts Point.</p>
<p style="text-align: justify;">The takeaway from <em>Torres</em> is that a New York slip and fall plaintiff cannot rely on mere speculation to sustain their burden of proof and must have concrete evidence to establish the element of constructive notice.</p>
<p style="text-align: justify;">Thank you to Gabriella Scarmato for her contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>