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In a Slip and Fall Case, the Flawed Constructive-Notice Jury Instruction Required Reversal of the Verdict (Plaintiff Had Won) and a New Trial on Liability

The First Department, over a dissent, reversed the verdict in plaintiff’s favor in a slip and fall case because of a flawed jury instruction and ordered a new trial on liability.  Plaintiff alleged she slipped and fell on ice on a subway platform.  The First Department determined that the jury instruction on constructive notice was so flawed that a new trial was necessary:

Over objection and despite defendant’s request for the correct instruction, the trial court instructed the jury that it had to find that “defendant either knew about the dangerous conditions or circumstances and that would be actual notice or a reasonable person would conclude that such a condition existed, and that would be called constructive notice.” This instruction does not make it clear that in order to find constructive notice, the jury must conclude that the condition was visible and apparent, and that it existed for a sufficient length of time for defendant to have discovered it and taken curative action (see PJI 2:90; 2:11 A…).  Harrison v New York City Tr Auth, 2014 NY Slip Op 00277, 1st Dept 1-16-14

 

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