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DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether defendant building manager was liable for the injuries to plaintiff from a window which fell out and onto his head when he attempted to close it. The doctrine of res ipsa loquitur may apply:

… [P]laintiff used the locker room to change and opened one of the windows half a foot to cool down. When he attempted to close the window, he used a “little bit more force than [he] did when [he] lifted it.” As the window closed, it reverberated a bit and then the whole window structure came out and crashed over plaintiff’s head. …

The defendant met its prima facie burden on lack of constructive notice of a dangerous condition. While it is disputed that defendant never inspected the windows since installation in 2004, it did not have an affirmative duty to conduct reasonable inspections … .

We find that an issue of fact exists as to the applicability of the doctrine of res ipsa loquitur, which allows for an inference of negligence to be drawn on the occurrence of an accident. The doctrine requires that a plaintiff must demonstrate that the “event is the kind which ordinarily does not occur in the absence of negligence, that it was caused by an agency or instrumentality within the exclusive control of the defendant, and [that] it was not due to any voluntary action or contribution on the part of the plaintiff” … .

Here, “common experience” dictates that a window being shut does not simply fall out absent negligence. In order to establish exclusive control, plaintiff is not required to show that defendant “had sole physical access” to the window… . Further, here remains a question of fact whether plaintiff did something to contribute to the window falling on him. Wilkins v West Harlem Group Assistance, Inc., 2018 NY Slip Op 08247, First Dept 12-4-18

NEGLIGENCE (RES IPSA LOQUITUR, DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))/RES IPSA LOQUITUR (DOCTRINE OF RES IPSA LOQUITUR MAY APPLY TO WINDOW FALLING ONTO PLAINTIFF, DEFENDANT BUILDING MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT))

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