Appellate Division:

Maintenance Records Assist In Establishing Defendants Case For Summary Judgment

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision on an Appellate Division case affirming summary judgment.

In any slip and fall case, the issue of notice always looms large. As all will remember, notice can be actual notice or constructive notice. In most slip and fall cases, the notice is constructive. A defendant who asserts that it did not have constructive notice of a dangerous or defective condition has the burden to demonstrate that it lacked notice. A recent case in which we won summary judgment shows how maintenance records can assist in this. 

In Sohi v. Costco, the plaintiff slipped and fell while she was shopping in Costco. who we defended. Plaintiff was shopping when her right foot slipped forward and she fell sustaining serious injuries. While she was on the floor, the plaintiff testified that she observed food on the ground. She could not tell what it was but it was wet and white. She was not clear if it was liquid or a puddle. Plaintiff did not know how long the "wettish," "noodle-like" substance was on the floor prior to her fall.  She did not see anyone from Costco clean up the substance from the floor.

We moved for summary judgment arguing, that Costco neither had actual nor constructive notice of a hazardous condition prior to plaintiff’s accident. The Supreme Court granted our motion relying heavily on the hourly floorwalk as well as the testimony and affidavit of the floorwalker in finding that Costco established that it conducted regular inspections and had no notice of the condition. Plaintiff appealed to the Appellate Division. The Appellate Division affirmed the granting of summary judgment and dismissal of the complaint.

The Appellate Division first noted that a defendant who moves for summary judgment in a slip and fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition which caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discovery and remedy it.  The Second Department noted that to meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff=s fall. The Second Department found that the evidence submitted by Costco in support of the motion which included the floorwalk maintenance record for the day, was sufficient to establish prima facie that they did not create the alleged hazardous condition or have actual or constructive notice. The Court found that in opposition the plaintiff had failed to raise an issue of fact.

This case demonstrates once again that where evidence exists as to when accident areas were routinely maintained, a successful summary judgment motion can be made. The difficulty is in obtaining that evidence when no records or recollection exist.

Should you have any questions, please call.

Thomas M. Bona