For slip and fall accidents that occur in commercial settings, it generally isn’t enough for a plaintiff who fell to prove that a foreign substance existed. Crucial questions of fact remain: what was on the floor, how did it get there, and when was it – or reasonably should it have been – noticed by the commercial proprietor? The plaintiff in Gilmore v. Nationwide Bowling Corp. learned the hard way that an inability to knock these crucial pins down in her favor meant failure for her lawsuit.

The plaintiff was bowling with friends at the defendant’s alley. The alley served food and beverages, but restricted patrons from eating or drinking on the lanes. After about an hour, plaintiff slipped, fell, and broke her wrist after stepping back from sending her ball down the lane. When she stood up, she noticed that her clothes were “slimy” and “damp,” but could not identify the substance on which she slipped, how it came to be on the floor, or how long it had existed. Rather, she offered evidence that the alley allowed people to eat and drink and that a porter had cleaned a spill on a nearby lane an hour before her accident.

The defendant moved for summary judgment arguing that plaintiff failed to identify what she slipped on, did not offer any evidence about how the substance came to be on the lane, or offer any proof that the defendant knew or reasonably should have known that the substance existed at the time of her accident. In affirming the trial court ruling, the Appellate Division held that evidence that a prior spill had occurred and was cleaned did not satisfy the what (the substance was), how (it got there), and when (was it noticed or reasonably should have been) components to a prima facie case of negligence.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.