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IN THIS SLIP AND FALL CASE, EVIDENCE THE AREA WHERE PLAINTIFF FELL WAS INSPECTED “MORE THAN AN HOUR” BEFORE AND EVIDENCE OTHERS WERE IN THE AREA AT THE TIME OF THE FALL DID NOT ELIMINATE QUESTIONS OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital did not demonstrate it did not have constructive notice of the wet substance on the floor alleged to have cause plaintiff’s slip and fall. Evidence that the corridor in question was inspected “more than an hour” before the slip and fall and evidence others were in the corridor when plaintiff fell did not eliminate questions fact about whether the hospital had constructive notice of the condition:

… [T]he defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the alleged slippery condition. The defendant’s evidence that the corridor was inspected more than an hour before the accident was insufficient to establish that the condition did not exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy the condition. The plaintiff’s deposition testimony, submitted by the defendant in support of its motion, established that there were at least three nurses and a doctor present in the corridor at the time of her fall … . Contrary to the defendant’s contention, the plaintiff’s deposition testimony that she did not notice anything on the floor before she fell was insufficient to establish that the condition would not have been discoverable upon a reasonable inspection … . Croake v Flushing Hosp. & Med. Ctr., 2023 NY Slip Op 06723, Second Dept 12-27-23

Practice Point: In a slip and fall, evidence the area of the fall was inspected “more than an hour” before the fall does not demonstrate the defendant did not have constructive notice of the condition.

 

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