The simple fact of a slip and fall is not sufficient to prove liability.  There must be some evidence of negligence.  In Mermelstein v. East Winds Co., the plaintiff unsuccessfully attempted to resurrect his case when a defendant filed a motion for summary judgment due to the absence of such proof.

The plaintiff alleged that he slipped on an exterior staircase outside of his apartment building, but at his deposition, he testified that he did not know what actually caused him to fall.  He did not know if it had rained that day, but he indicated that it was misting at the time of his accident. 

When the defendant moved for summary judgment, the plaintiff submitted an affidavit contradicting his deposition testimony stating that the steps were slippery due to rain earlier in the day.  The courts were not impressed with this late explanation of his fall.  First, the late submission was only a “feigned issued of fact” given the contradiction to his earlier testimony.  Second, mere wetness on the steps would not create a triable issue of fact.  In order to prove the staircase was dangerous when wet, the plaintiff would have needed expert testimony.

The lower court granted the defendant’s summary judgment motion, and the First department affirmed, finding that the plaintiff failed to identify the cause of his accident. 

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at .