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Plaintiff’s Allegation of Inadequate Lighting Was a Sufficient Indication She Was Aware of the Cause of Her Fall

The Second Department determined summary judgment should not have been granted to the defendants in a slip and fall case.  The court found that plaintiff had presented evidence of the cause of the fall (inadequate lighting) and the defendants did not demonstrate that they neither created the dangerous condition nor had constructive notice of it:

“In order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence” … . A plaintiff’s inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation

Here, the respondents failed to establish, prima facie, that the injured plaintiff did not know what had caused her to fall. The injured plaintiff testified during her deposition that the lighting in the hallway was so poor that she could hardly see her surroundings and that she kept her hand on the wall to guide her down the hallway. This testimony, which the respondents submitted with their motion, itself demonstrated the existence of a triable issue of fact as to whether the alleged lack of adequate lighting was a proximate cause of the accident … . Additionally, the respondents failed to establish that they neither created the allegedly dangerous condition nor had actual or constructive notice of it … . Since the respondents failed to satisfy their initial burden of establishing their prima facie entitlement to judgment as a matter of law, their motion should have been denied without regard to the papers submitted in opposition … .  Palahnuk v Tiro Rest Corp, 2014 NY Slip Op 02418, 2nd Dept 4-9-14

 

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