Question of Fact Whether Real Estate Broker “Launched an Instrument of Harm” In an Apartment Being Shown to Plaintiff; Evidence of Custom Not Enough to Shift the Burden of Proof in Premises Liability Action

The First Department determined defendant real estate broker’s (Prudential/Leonhardt’s) motion for summary judgment in a personal injury case should not have been granted. As an apartment was being shown by the real estate broker, plaintiff tripped and fell when her foot became tangled in a drapery cord which was on the floor. The broker (Leonhardt) submitted evidence in support of the motion for summary judgment stating that she did not remember whether she opened the drapes on the day in question, and further stating that her habit was to hang the cord up when she did open the drapes. The court held the broker’s evidence was not sufficient to demonstrate, as a matter of law, that the broker did not “launch an instrument of harm,” i.e., cause the cord to be on the floor. Therefore, the contract between the broker and the owner of the apartment could have given rise to a duty of care owed by the broker to the plaintiff:

We thus turn to the … potential predicate for finding third-party tort liability, which rests on whether Prudential or Leonhardt launched an instrument of harm. Since they were the movants for summary judgment, Prudential and Leonhardt had the prima facie burden of demonstrating that there were no triable issues of fact and that they were entitled to judgment as a matter of law on the issue … . Leonhardt’s deposition testimony, and her affidavit in support of the motion, established that it was possible that she opened the drapes before the accident occurred, although she was not able to state with a reasonable degree of certainty that she did. If indeed she had opened the drapes, Leonhardt surmised, she would have wrapped the cord around the hook, because that is what she always did. However, evidence of a particular custom is insufficient to shift the burden in a premises liability case, because the defendant is required to proffer “specific evidence as to [her] activities on the day of the accident” … . Here, since Leonhardt had no specific recollection concerning the opening of the drapes on the day of the accident, she and Prudential were unable to eliminate the possibility that they were responsible for the hazardous placement of the cord on the floor. Accordingly, they failed to meet their prima facie burden, and the court should have denied their motion for summary judgment. Stimmel v Osherow, 2015 NY Slip Op 08340, 1st Dept 11-17-15