In NY, Inspection Is the Key to the Notice Argument.

It is well established that a defendant moving for summary judgment in an action involving a slip and fall on a transient condition must make a prima facie showing that it neither created the condition, nor had actual or constructive notice of the existence of the condition for a length of time sufficient to discover and remedy it. Because it is nearly impossible to determine how long a transient condition has been present, courts look at many factors, including whether it was ongoing, recurring or even dirty.

In Bruinsma v. Simon Property Group the plaintiff sustained personal injuries when she slipped on a bubble on the ground of the New Haven Mall. The defendant moved for summary judgment on the grounds that it did not have notice of the alleged condition. The Supreme Court Suffolk County denied the motion.

The Appellate Division Second Department upheld the lower court’s decision. Although courts look at many factors when determining notice of a transient condition, in this case, the Appellate Court’s decision was based solely on the defendant’s failure to submit evidence of when the ground was last inspected prior to the accident.

Special thanks to Ed Lomena for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

http://www.nycourts.gov/reporter/3dseries/2010/2010_04942.htm