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THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY PLAINTIFF DID NOT IDENTIFY THE CAUSE OF PLAINTIFF’S DECEDENT’S SLIP AND FALL; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner in this slip and fall case was entitled to summary judgment because plaintiff, the administrator of plaintiff’s decedent’s estate, could not identify the cause of plaintiff’s decedent’s fall. Plaintiff’s decedent died from a brain injury incurred by the fall in a bathroom. Although the complaint alleged the floor was wet and slippery, that allegation was not supported by any of the circumstantial evidence. Plaintiff’s decedent said he had lost his balance:

Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party … , the defendants demonstrated, prima facie, that the plaintiff was unable to identify the cause of the decedent’s accident without engaging in speculation, since the evidence demonstrated that the plaintiff was unable to identify how the decedent’s accident occurred or what dangerous condition or defect, if any, in the men’s bathroom caused the decedent’s fall … . In opposition, the plaintiff failed to raise a triable issue of fact. Cruz v Flatlands Christian Ctr., Inc., 2023 NY Slip Op 05120, Second Dept 10-11-23

Practice Point: If the cause of a slip and fall cannot be identified without speculation, the action will be dismissed.

 

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