New York Personal Injury Law Blog » Slip and Fall


December 4th, 2008

Case Dismissed. Case Dismissed. (Slip/Trip and Fall)

There is the perception amongst many that any injury gives rise to a legitimate lawsuit. Not so. Here are two dismissals on Tuesday from the Appellate Division, First Department of personal injury cases, with relatively routine fact patterns.

First up, a slip and fall on a waxy floor. In a very brief decision, the court wrote in a Purcell v. York Building Maintenance Corp.:

Plaintiff’s claim that appellant created the slippery condition of the floor on which plaintiff slipped by excessive waxing rests only on her observation that the floor was “shiny.” Such evidence, without more, does not permit an inference of negligent waxing….Nor may such inference be made on the basis of plaintiff’s testimony that a carpet and a yellow “caution” or “slippery” sign were placed on the floor shortly after her fall.

Next up, this plaintiff was injured when she tripped on garbage at a street fair. In Torres v. Washington Heights Business Improvement District Management Association, the court chucked the case, writing:

Although defendant, as a licensee who obtained permission to use the designated streets to sponsor and host the fair, owed a duty of care to maintain the area in a reasonably safe condition, the evidence demonstrates that defendant established its entitlement to summary judgment by showing that it had no constructive notice of the defective condition. The general awareness of litter in the streets is insufficient to raise a triable issue as to whether defendant had constructive notice of the plastic bag that caused plaintiff’s fall.

Both cases involve the issue of notice. If defendants aren’t aware of defects then they don’t have the chance to fix them. (In the first case, that assumes the floor was even overly waxy to begin with.) That notice has to be actual or constructive (which means proving the defect was there so long that they should have known.)

The time to figure out if you have notice of the defect is (hopefully) not during depositions, but during intake and investigation. If you can’t establish it without discovery from the defendant, the issue becomes that much harder. And if you can’t establish it at all, expect your case to be heading for dismisssal.

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