Slip-and-fall accidents are among the most common sources of injury in New York City, with victims often suffering serious and life-altering injuries that sometimes even result in death. These are often the result of wet floors, construction site defects, unlit stairwells, icy walkways or other problems that are both knowable and preventable by property owners.
Simply suffering injury by fall is not enough to prove liability, however. Plaintiffs in New York slip-and-fall accidents have to show the property owner/manager failed to use reasonable care in maintaining a safe site for patrons or guests. If the fall was the result of a transitive foreign substance on the floor, plaintiff has to show the dangerous condition was either created by the property owner/manager or that he or she had actual or constructive knowledge of the problem and failed to address it in a timely manner. Actual knowledge means the owner was in fact aware. Constructive knowledge means the owner should have known of or discovered it in the course of carrying out routine maintenance duties.
Particularly with regard to constructive knowledge, the determination is often subjective, open to the court’s interpretation.
This is why having an experienced Manhattan injury attorney on your side is so crucial. You will need a lawyer who is thorough, experienced and effective in order to succeed with your claim.
Many slip-and-fall injury claims are defeated by grant of summary judgment before ever reaching the trial phase. That means defendants request – and receive – a favorable determination as a matter of law prior to trial. In slip-and-fall cases, a judge will have to consider whether plaintiff has raised triable issues of fact that can be presented to the jury in order to proceed. Usually, this involves at minimum asserting constructive knowledge of the condition and failure to timely address or warn.
There are other defenses that could prove effective later on, but the first goal of the injured party is to overcome the defense motion for summary judgment.
In the recent case of Fernandez v. Festival Fun Parks, d/b/a Splish Splash, the New York Supreme Court Appellate Division, Second Department determined denial of defense motion for summary judgment was appropriate, meaning plaintiff can proceed with her slip-and-fall injury claim.
Here, plaintiff was at a water park in Suffolk County in August 2008 when she slipped and fell in the ladies’ room on wet floor. Defendant unsurprisingly moved for summary judgment. Because the moving party has the initial burden of proof in a summary judgment request, the defendant had to make a prima facie showing it did not create the hazardous condition or have actual or constructive knowledge of it for a sufficient length of time before failing to remedy it.
The motion was denied.
Defendant appealed. Appellate court noted in order for defendant to meet its proof burden for summary judgment, it would have had to offer some evidence as to when the floor was last cleaned or inspected prior to plaintiff’s alleged fall. It’s not enough at this phase to give a general description of maintenance procedures or point to gaps in plaintiff’s testimony. There must be some direct evidence as to the actual inspection/maintenance that occurred prior to plaintiff’s fall. Defendant failed to establish this here, and thus, denial of summary judgment motion was affirmed.
This means plaintiff may continue with her injury claim. At this point, the case will either be settled out-of-court in a negotiated agreement, or it will move to the trial phase where a jury will parse the details.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Fernandez v. Festival Fun Parks, d/b/a Splish Splash, Nov. 19, 2014, New York Supreme Court Appellate Division, Second Department
More Blog Entries:
Lawrence v. La Jolla Beach & Tennis Club – Window Fall Case to Proceed, Nov. 30, 2014, Manhattan Injury Lawyer Blog