In Costello v Pizzeria Uno of Albany, Inc., the Third Department recently explained how both plaintiff and defendant could survive their opponent’s post-discovery summary judgment motions through a minimal evidentiary showing.

In 2011, plaintiff Barbara Costello went to lunch with two co-workers at the defendant’s pizzeria, and she  fell and injured her foot. She brought suit against the defendant for failing to maintain the floor in a reasonably safe condition.  At the close of discovery, plaintiffs moved for summary judgment on liability, and defendant cross-moved for summary judgment dismissing the complaint. The trial court granted defendant’s cross-motion and plaintiffs appealed.

The Appellate Division, Third Department, reversed, because plaintiffs raised a triable issue of fact even though they were “unable, or perhaps unwilling to immediately ascertain the cause” of the fall.  In plaintiff’s affidavit, she stated that the wooden floor was bowed, “and did not provide a proper walking surface.” Further, plaintiff produced two non-party witnesses, her co-workers, who confirmed that the floor appeared buckled, and that the unevenness of the floor made it feel like walking down a ramp.

According to the Third Department, the trial court misplaced its focus on the defendant’s claims that plaintiff’s unscientific evidence was insufficient to raise a triable issue of fact. Indeed, the defendants pointed to plaintiff’s affidavit, indicating that she merely “believe[d]” that the bowed floor caused her to fall. The Third Department noted that plaintiff’s use of “believe” was simply a figure of speech, and did not defeat her claim.

Lastly, and perhaps most critically, defendant’s evidence was insufficient to remove all questions of fact.   Even after the close of discovery, defendants never offered any “objective physical data, measurements, or an evaluation of the floor surface.” Instead, they relied on low quality photographs, and the statement of one restaurant manager who did not witness plaintiff’s fall. The defendants failed to produce any incident reports or any testimony from anyone who was actually present at the time of plaintiff’s injury.  Because neither party presented enough evidence to “render other causes [of her fall] sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation, the court reversed the trial court’s order.

The message here is that a motion for summary judgment on a premises liability case like this one needs to leave no stone unturned in demonstrating the absence of liability.  We suspect a well written engineering inspection report would have prompted a different outcome.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.