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PLAINTIFF ALLEGED HE STUMBLED WHEN HIS FOOT HIT ROLLED UP CARPETS AND THEN HE TRIPPED ON A RAISED SIDEWALK FLAG IN THIS SLIP AND FALL CASE; DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CARPETS, BUT THERE WERE QUESTIONS OF FACT ABOUT DEFENDANT’S NOTICE OF THE RAISED FLAG AND WHETHER THE FLAG WAS TRIVIAL; THE COURT NOTED THERE CAN BE MORE THAN ONE PROXIMATE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this slip and fall case did not eliminate issues of fact re: notice and nature of the raised sidewalk flag. There were rolled up carpets on the sidewalk, of which defendant had no notice. Plaintiff alleged he stumbled when his foot hit the carpet and then he tripped on the raised flag. The court noted there can be more than one proximate cause of an accident:

… [T]here are issues of fact as to whether defendant had constructive notice of the sidewalk defect, whether the defect was trivial, and whether it proximately caused plaintiff’s fall. Defendant failed to offer specific evidence as to when the sidewalk was last inspected, relying only on vague testimony concerning the manager’s occasional visits to the shopping center … . Plaintiff’s submission of photographs depicting the height differential in the raised sidewalk flag to be about one inch also raised an issue of fact as to whether the defect was nontrivial … . While plaintiff testified that he first tripped on the rolled-up carpets before coming into contact with the sidewalk defect, “there can be more than one proximate cause of an accident” … . Abraham v Dutch Broadway Assoc. L.L.C., 2021 NY Slip Op 01711, First Dept 3-23-21

 

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