Not Better Second Time Around:

Appellate Term Affirms Dismissal of Plaintiff’s Case

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 appellate decision concerning summary judgment in a slip and fall case.

In September 2013, we wrote about a case in which our client Costco was granted summary judgment.  In Holmes v. Costco, the plaintiff slipped and fell at a Costco warehouse by the check-out registers.  When the Administrative Manager was notified, she inspected the area and found a sticky substance like gum, not a liquid.  The Administrative Manager directed the plaintiff to fill out a report which provided in part that plaintiff "was standing at the check-out line and when I moved further up to the counter I slipped and fell to the floor".  Costco moved for summary judgment.

We provided evidence from the assistant manager that there was a floorwalk during the time plaintiff claims she fell and no foreign substance or any other problem was detected. The floorwalk was also produced which showed that there was no known spills or tripping hazards. Our motion for summary judgment was granted with the Court finding that plaintiff had failed to establish any dangerous or defective condition and that plaintiff had not refuted Costco’s contention that they could not have actual or constructive notice of a dangerous or defective condition. The lower court noted that Costco had shown that plaintiff had presented four (4) different versions of the events. 

Notably, plaintiff’s son alleged that plaintiff fell into a shopping cart due to a defective wheel that had jammed, and that he found a screw from such a wheel lying on the floor. In opposition to Costco’s summary judgment motion, the son later submitted an affidavit in which he claimed that the plaintiff fell due to a combination of a shopping cart wheels jamming and the cellophane paper on the floor.

Plaintiff appealed to the Appellate Term which has now rendered a decision. The Appellate Term noted that plaintiff’s deposition testimony provided nothing more than mere speculation as to the cause of the accident and offered nothing to indicate that the defendants created or had notice of the hazard. The Court found that plaintiff did not know long the water or cellophane was on the floor or how it got there, and did not observe anything on the floor prior to her fall. The Court noted that “[t]o the extent that plaintiff’s son now claims to have seen the cellophane more than one hour before the accident, we can only consider such statements to have been tailored to avoid the consequences of his earlier testimony - where he alleged that the accident was caused by a defective wheel on a shopping cart”.  The Appellate Term found this insufficient to raise a triable issue of fact and affirmed the granting of summary judgment.

When a plaintiff offers different versions of how an accident happened, there is the opportunity to use this to formulate a summary judgment motion and argue that the plaintiff is speculating about the cause of the accident. This can give a Court a sound reason to dismiss the case.

Should you have any questions, please call.