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QUESTIONS OF FACT WHETHER THE “LAUNCH AN INSTRUMENT OF HARM” ESPINAL EXCEPTION APPLIED TO A CONTRACTOR AND WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION ALLEGED TO HAVE CAUSED PLAINTIFF’S SLIP AND FALL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether defendant contractor launched an instrument of harm in this slip and fall case. Plaintiff alleged she tripped on a piece of masonite that had been placed over concrete that had just been poured. There was also a question of fact whether the property owner had constructive notice of the condition:

The … defendants’ submissions failed to eliminate all triable issues of fact as to whether Howell launched a force or instrument of harm through the failure to exercise reasonable care when its employee laid the subject masonite over the area of the floor where the self-leveling concrete had been poured … . …

The evidence proffered by the … defendants failed to demonstrate, prima facie, that the [defendants] lacked constructive notice of a hazardous condition on the premises. During an examination before trial, [defendant’s] operations director was asked about his inspection tour of the mall on the morning of the plaintiff’s fall. His repeated descriptions of what he “normally would” do and “probably would have” done are ambiguous as to whether he is describing a specific inspection, or merely describing general inspection policies and practices … . Pinto v Walt Whitman Mall, LLC, 2019 NY Slip Op 06157, Second Dept 8-21-19

 

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