In Milorava v Lord And Taylor Holdings LLC, plaintiff slipped and fell on water accumulated on certain marble tile flooring near the entrance of the defendant’s department store.

A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for sufficient time to remedy it.  A defendant is not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from rain being tracked in, but the defendant can be liable for injury caused if it created or had notice of the condition.

Here, defendant Lord  & Taylor failed to establish, prime facie, that it did not have constructive notice of the alleged hazardous condition. To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall. Neither the affidavit of the defendant’s operations manager, nor the deposition testimony of the defendant’s asset protection manager established when the area where the plaintiff fell, or any of the entrances to the store, were last inspected in relation to the plaintiff’s fall. The deposition of the defendant’s operations manager set out what the general policies had been from the time she assumed that role in 2012, which is two years after the incident at issue.

Reference to a cleaning policy, with no evidence regarding specific reference to the area at issue is not sufficient to establish lack of constructive notice.  Thus, because defendant was unable to show they lacked constructive notice, the Supreme Court should have rejected the defendant’s motion for summary judgment.  Thanks to Jason Kosek for his contribution to this post.  Please email Brian Gibbons with any questions.