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THE FACT THAT PLAINTIFF SLIPPED AND FELL ON “BLACK ICE” DOES NOT SUPPORT THE CONCLUSION THE ICE WAS NOT VISIBLE; THIS SLIP AND FALL COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the “black ice” in the parking lot was visible such that defendant had constructive notice of its presence:

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant’s employees to discover and remedy it” … . In moving for summary judgment, defendants argued, and the court agreed, that they did not have constructive notice inasmuch as plaintiff slipped on black ice and thus the icy condition was not visible and apparent. Although plaintiff allegedly slipped on black ice, “that fact alone does not establish as a matter of law that the ice was not visible and apparent” … . Moreover, the fact that plaintiff did not see the ice before she fell is not dispositive of whether the condition was visible and apparent … . Here, defendants submitted excerpts from plaintiff’s deposition where she described the ice, as she observed it after she fell, as “[a] wide circle” and “a big patch” that “was the same color as the ground” and not shiny. We conclude that defendants failed to meet their initial burden of establishing as a matter of law that the icy condition was not visible and apparent … . Doyle v Tops Mkts., LLC, 2025 NY Slip Op 00577, Fourth Dept 1-31-25

Practice Point: Black ice is not invisible as a matter of law.​

 

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