Res Ipsa Loquitur Cause of Action Should Not Have Been Dismissed/Question of Fact About Whether Handrail Which Came Loose Was In Exclusive Control of Defendant

The Fourth Department determined Supreme Court should not have granted defendant’s motion for summary judgment on plaintiff’s res ipsa loquitur case of action.  Plaintiff was injured when a handrail came loose from the wall in her apartment building:

Supreme Court … erred in granting defendant’s motion for summary judgment dismissing the complaint on the ground that defendant established as a matter of law that it did not have exclusive control of the handrail, i.e., one of the necessary conditions herein for the applicability of the doctrine of res ipsa loquitur ….  We conclude that plaintiff raised an issue of fact whether the handrail was in the exclusive control of defendant, and thus that the court erred in granting defendant’s motion … .  …

“The exclusive control requirement . . . is that evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it . . . The purpose is simply to eliminate within reason all explanations for the injury other than defendant’s negligence” … .  Here, plaintiff established that access to the internal stairway is limited to the residents of the three units in the building and defendant’s maintenance staff …, and a former maintenance staff person testified that railings in other buildings had become loose and were tightened as needed.  We therefore conclude that plaintiff raised an issue of fact “that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it”… . Herbst v Lakewood Shores Condominium Association, 1337, 4th Dept 12-27-13