Defendant’s Burdens Re: Summary Judgment in Slip and Fall Case—Notice and Act of God​

In affirming the denial of defendant’s motion for summary judgment in a water-on-floor slip and fall case, the Second Department explained that a defendant can not point to gaps in the plaintiff’s case to meet its affirmative proof burdens re: notice and “act of God:”

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of establishing, prima facie, that it neither created the dangerous condition that allegedly caused the underlying accident nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it…. This burden cannot be satisfied merely by pointing to gaps in the plaintiff’s case … . * * *

With respect to the issue of whether the … defendants created a hazardous condition, they failed to establish their prima facie entitlement to judgment as a matter of law based on their contention that the water condition at the premises was caused by an act of God. For a loss to be considered the result of an act of God, human activities cannot have contributed to it in any degree… ..  Sawicki v GameStop Corp, 2013 NY Slip Op 03657, 2nd Dept, 5-22-13