Slip and Fall Accident - Condition of Puddle Not Clearly Established
In Hernandez v. Conway Stores, Inc, the Second Department evaluated a slip and fall accident. Slip and fall accidents are common and often occur in stores where employees either know or have reason to know of a hazardous condition but let the situation fester or exist, such as a leaking fixture leading up to a Supermarket Slip and Fall.
"An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition" (Farrar v Teicholz, 173 AD2d 674, 676; see Mullen v Helen Keller Servs. for the Blind, 135 AD3d 837; Cupo v Karfunkel, 1 AD3d 48, 51; see also Basso v Miller, 40 NY2d 233, 241). In order for a plaintiff in a slip and fall case to establish a prima facie case of negligence, the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition (see Eddy v Tops Friendly Mkts., 91 AD2d 1203, affd 59 NY2d 692; see also Fernandez v Bucknell Realty Ltd. Partnership, 123 AD3d 972; Duque v Perez, 95 AD3d 937, 938). To constitute 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 defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837; see Parietta v Wal-Mart Stores, Inc., 140 AD3d 1039). Furthermore, a plaintiff in a personal injury action who moves for summary judgment on the issue of liability has the burden of establishing, prima facie, both that the defendant was negligent and that he or she was free from comparative fault (see Thoma v Ronai, 82 NY2d 736, 737; Lutz v Defabio, 140 AD3d 1032, 1033; Phillip v D & D Carting Co., Inc., 136 AD3d 18, 22).
The difficulty of proving these cases is to show that the owner of the premises caused the condition and allowed the condition to exist. Constructive notice may become key in these matters - how long did the condition exist and how does one prove that it was caused by the store owner. Often calling an attorney and investigating these matters are key. Should you find yourself or a loved one the victim of a Slip and Fall Accident, please call the Law Offices of Cory H. Morris: 631-450-2515.
Here, the Court concluded "Here, the plaintiff failed to make a prima facie showing of her entitlement to judgment as a matter of law on the issue of liability. The plaintiff's submissions provided conflicting evidence with respect to how long the puddle had been on the floor prior to the plaintiff's accident, and were insufficient to demonstrate, prima facie, that the defendant had actual notice of the puddle, or that it had existed for a sufficient length of time for the defendant's employees to discover and remedy it. The plaintiff's submissions also failed to demonstrate, prima facie, that she was free from comparative fault (see Lopez-Calderone v Lang-Viscogliosi, 127 AD3d 1143, 1145; Cupo v Karfunkel, 1 AD3d at 52)."
