The Appellate Division, Second Department, recently decided Lococo v. Mater Cristi Catholic High School, et al. 2016  NY Slip  Op 05796, wherein it reversed the decision of the lower Court and granted summary judgment in the defendants’ favor.

Plaintiff, an employee of an independent catering company, was injured while working at defendant school when she tried to plug an extension cord she found on the premises into the wall.  (The Court does not elaborate on the injury — there may have been an electrical shock, based upon the reference to the extension cord, but this is speculation on our part.)  Plaintiff claimed that the defendant school created the condition, had both actual and constructive notice of the condition and were liable under the theory of res ipsa loquitor, the theory that the incident could not have occurred absent an act of negligence.

While the lower Court found a question of fact as to notice, the Appellate Division found that the School proved it did not create the condition, or have any notice thereof. Additionally, the Court stated that res ipsa loquitor is inapplicable as it was established that the extension cord was not in the school’s exclusive control as plaintiff and her company also had access to it.

This decision emphasize the importance of the notice requirement in a premises case. The doctrine of res ipsa loquituir, alleged by plaintiff, is misplaced here.  Frankly, any reference to the doctrine operates as a tacit admission that shows that plaintiff cannot prove notice.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.