The Second Department determined defendant’s motion for summary judgment in a slip and fall case should not have been granted. Plaintiff’s testimony she “felt” liquid on the floor was sufficient evidence plaintiff was aware of the cause of her fall. And defendant failed to demonstrate a lack of constructive notice of the dangerous condition:

Although the defendant presented evidence that it neither created, nor had actual notice of, the alleged condition, it failed to demonstrate that it did not have constructive notice of the alleged condition, as the defendant failed to tender any evidence establishing when the subject area was last inspected and cleaned prior to the accident … . Korn v Parkside Harbors Apts., 2015 NY Slip Op 09071, 2nd Dept 12-9-15

NEGLIGENCE (CAUSE OF FALL, PLAINTIFF’S KNOWLEGE OF)/NEGLIGENCE (CONSTRUCTIVE NOTICE OF DANGEROUS CONDITION, FAILURE TO DEMONSTRATE LACK OF)/SLIP AND FALL (CAUSE OF FALL, PLAINTIFF’S KNOWLEDGE OF; CONSTRUCTIVE NOTICE, LACK OF KNOWLEDGE OF DANGEROUS CONDITION, FAILURE TO DEMONSTRATE)

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the driver of a vehicle which struck the rear of a stopped vehicle (in which plaintiff was a passenger) raised a question of fact about whether the accident was unavoidable because of oil on the roadway. The Second Department took the time to explain, in detail, what the proof burdens are in the context of a rear-end collision. Here, the fact that the plaintiff-passenger was not at fault should not have given rise to the automatic conclusion the driver of the rear vehicle was at fault. In addition to the allegation oil on the road made it impossible to stop, there was a question whether the driver of the lead vehicle was comparatively at fault for stopping in the roadway to let off passengers:

We take this opportunity to caution that trial courts must be careful to avoid concluding, in rear-end accident cases, that just because a plaintiff is a passenger in the lead vehicle, the liability of the rear vehicle is automatically established. It is not. A plaintiff moving for summary judgment on the issue of liability must meet the twofold burden of establishing that he or she was free from comparative fault and was, instead, an innocent passenger, and, separately, that the operator of the rear vehicle was at fault. If the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, as here, summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger … .

We further note that [the driver of the rear vehicle] aised the issue of the [lead vehicle driver’s] comparative fault by asserting that the van was partially stopped in the moving lane of traffic. A plaintiff’s right as an innocent passenger to summary judgment on the issue of liability is not barred or restricted by any potential issue of comparative fault as between the owners and operators of the two vehicles involved in the accident … . Thus, had the only triable issue of fact raised [by the rear driver] been the [lead driver’s] comparative fault, the plaintiff would have been entitled to summary judgment on the issue of liability against [the rear driver]. However, since [the rear driver] raised a triable issue of fact as to whether [he was] completely free from fault, “[t]his matter involves more than simply a trier of fact’s apportionment of fault between both defendants” … . Accordingly, the plaintiff is not entitled to summary judgment on the issue of liability against [the rear driver]. Phillip v D&D Carting Co., Inc., 2015 NY Slip Op 09084, 2nd Dept 12-9-15

MONTHLY COMPILATION INDEX ENTRIES FOR THIS CASE:

NEGLIGENCE (REAR-END COLLISIONS, BURDENS OF PROOF WHERE PLAINTIFF IS PASSENGER IN LEAD VEHICLE)/REAR-END COLLISIONS (BURDENS OF PROOF WHERE PLAINTIFF IS PASSENGER IN LEAD VEHICLE)

The Second Department determined a question of fact had been raised whether a wheel stop in a parking area was an open and obvious condition. A photograph demonstrated the wheel stop was partially obstructing a walkway:

Here, the defendants submitted the expert affidavit of a forensic engineer who determined that “the parking lot was a safe walking surface and adequately illuminated at night,” and that the wheel stop on which the injured plaintiff tripped “was an open and obvious condition” located “within a designated parking space” and not a pedestrian walkway. However, the photographs upon which the defendants’ expert partially relies depict the wheel stop as extending directly in front of, and thus partially obstructing, a designated pedestrian walkway. Thus, the defendants failed to satisfy their initial burden of showing that they neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Rivera v Queens Ballpark Co., LLC, 2015 NY Slip Op 09087, 2nd Dept 12-9-15

MONTHLY COMPILATION INEX ENTRIES FOR THIS CASE:

NEGLIGENCE (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)/SLIP AND FALL (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)/OPEN AND OBVIOUS CONDITION (WHEEL STOP NOT OPEN AND OBVIOUS AS A MATTER OF LAW)/WHEEL STOP (QUESTION OF FACT WHETHER WHEEL STOP WAS OPEN AND OBVIOUS)