What is a plaintiff who slips on ice to do when notice is part of the proof burden?  A plaintiff who admits that she observed the ice before she fell will have comparative negligence problems.  A plaintiff who did not see it will have proof of notice issues.  This conundrum leads to creative lawyering.

In Tompa v. 767 Fifth Partners, LLC, the plaintiff allegedly slipped on a thin sheet of ice near a fountain outside of the defendant’s building.  She admitted that she did not see the ice before she fell.  The defendant’s employees testified that they had inspected the area prior to the fall and did not observe any ice.  With no potential for actual notice under these circumstances, the plaintiff turned to constructive notice.

The plaintiff alleged that water from the fountain’s reflecting pool was swept up in a gust of wind and carried over onto the plaza.  The plaintiff argued that the defendant had constructive notice of a recurrent condition.  In her theory, the spray of the fountain combined with the wind data for the time in question, should have put the property owner on notice.

While creative, the theory was short on factual or expert support.  The First Department affirmed summary judgment holding that there was no evidence of actual or constructive notice.  While the plaintiff’s ‘fluid dynamics’ theory of how the water got onto the plaza was intriguing, there were no proofs that the fountain was on, no evidence of recurring spraying, and no expert to substantiate the wind flow explanation.  The fluid dynamics argument was beyond the experience and knowledge of the average jurist and, therefore, required expert testimony to support the hypothesis.  Without such expert support, the Court held that the plaintiff’s theory was mere speculation.

In the end, the lack of notice could not be overcome even by creative argument.

Special thanks to Georgia Stagias for her contribution.

For more information, contact Denise Fontana Ricci at .