A plaintiff who alleges she was injured due to a defective condition must describe or identify the condition to satisfy her proof burden. Where the plaintiff cannot identify the defect, the claim against the property owner will generally not survive a summary judgment motion. Yet, In Palahnuk v. Tiro Restaurant Corp., the plaintiff convinced the Second Department that her claim should not have been dismissed despite this major gap in her proofs.
In Palahnuk, the plaintiff allegedly tripped and fell in a restaurant hallway. The defendant convinced the trial judge to dismiss the claim because she failed to identify the specific defect. In her appeal, plaintiff conceded that she was unable to identify the specific defect, but only because the lighting in the restaurant hallway was too dark, and she could not see her surroundings. In what was undoubtedly a frustrating decision for the landowner, the Court found that there was a triable issue of fact as to whether the “lack of adequate lighting was a proximate cause of the accident,” and remanded the matter back to the trial court.
We look to decisions like this one for guidance for avoiding similar pitfalls. Here, the question is whether the defendant could have rebutted the claim of poor lighting. Of course, even then, a judge might find a triable issue of fact regarding the different descriptions of the lighting conditions.
Judges in New York tend to deny summary judgment motions far more often than granting them; cases like Palahnuk illustrate why many such judges err on the side of caution and, as they say, “let the jury decide.”
Thanks to Brian Gibbons for his contribution.
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