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QUESTION OF FACT WHETHER HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT.

The Second Department, reversing Supreme Court, determined there was a question of fact whether a latent defect was actionable under the doctrine of res ipsa loquitur. An outside step flipped up when plaintiff stepped on it, causing plaintiff to fall. The underside of the step was rotten and the nails didn’t hold. Apparently the condition of the step was not visible until the underside was exposed:

… [P]laintiff raised a triable issue of fact as to the application of the doctrine of res ipsa loquitur … . “Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event” … . A plaintiff makes a prima facie case of negligence under res ipsa loquitur by establishing three elements: ” (1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff'” … . Res ipsa loquitur does not create a presumption of negligence; rather, it is a rule of circumstantial evidence that permits, but does not require, the jury to infer negligence … ​

Here, the defendant contends that the plaintiff failed to raise an issue of fact as to the applicability of the doctrine because the homeowner did not have exclusive control over the deck steps. However, the concept of exclusive control does not require rigid application, since the general purpose of the element is to indicate from the circumstances that it was probably the negligence of the defendant, rather than another, which caused the accident … . Although there was evidence that other guests used the deck steps, the steps were located on private residential property, not an area open to the general public … . Under these circumstances, the plaintiff raised a triable issue of fact as to the homeowner’s exclusive control of the deck step and whether an inference of negligence is warranted under the doctrine of res ipsa loquitur … . Marinaro v Reynolds, 2017 NY Slip Op 05714, 2nd Dept 7-19-17

NEGLIGENCE (SLIP AND FALL, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/SLIP AND FALL (QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/LATENT DEFECT  (SLIP AND FALL, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)/RES IPSA LOQUITUR (SLIP AND FALL, LATENT DEFECT, QUESTION OF FACT WHEN HOMEOWNER WAS LIABLE FOR A LATENT DEFECT IN AN OUTSIDE STEP UNDER THE DOCTRINE OF RES IPSA LOQUITUR 2ND DEPT)

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