In Giantomaso v. T. Weiss Realty Corp., the Second Department recently discussed how issues of constructive notice and res ipsa loquitur can intertwine to create issues of fact preventing either plaintiffs or defendants from prevailing on summary judgment.

The case stems from a 2011 incident wherein plaintiff Frances Giantomaso slipped and fell on ice as she exited a building on the defendants’ premises. Plaintiff contended that the icy condition was created by defendants’ use of an outdoor sprinkler system in the month of December. The defendants moved for summary judgment dismissing the complaint and the plaintiff cross-moved, inter alia, for summary judgment on the issue of liability based on the doctrine of res ipsa loquitur. The trial court denied both defendants’ and plaintiff’s motion, and both parties appealed to the Second Department.

Beginning with the defendants’ contention, the Second Department analyzed the defendants’ failure to establish their entitlement to judgment as a matter of law. The Court noted that in a slip and fall case, a defendant seeking summary judgment has the burden to put forth a prima facia case that it did not create the hazardous condition, and that it did not have actual or constructive notice of that hazardous condition for an adequate period of time to discover and fix it.

Contrary to the trial court, the Second Department held that the defendants failed to put forth sufficient evidence that they were not on constructive notice of icy condition. The Court explained that a defendant cannot establish that it lacked constructive notice with “reference to general cleaning practices.” Instead, lack of constructive notice can only be established with evidence of specific cleanings or inspections of the subject area that occurred prior to the plaintiff’s accident. In support of its motion, the defendants failed to provide any specific details regarding the last time the subject area was cleaned or inspected, and so the Court held that they failed to show that it lacked constructive notice.

The Court went on to address plaintiff’s motion for summary judgment on the issue of liability, which was based on the doctrine of res ipsa loquitur. Under the doctrine of res ipsa loquitur, a plaintiff is able to bypass the ordinary negligence requirement that it point to the specific act or omission on the part of the defendant that constituted a breach of the defendant’s duty. Essentially, it allows the inference of negligence to be drawn solely from that the fact that an accident occurred. However, to rely on the doctrine, the plaintiff must show that 1) the event that lead to the plaintiff’s injury is not the kind that ordinarily occurs in the absence of someone’s negligence; 2) the instrumentality that caused plaintiff’s injury was within the defendant’s exclusive control; and 3) that the injury was not the result of any voluntary action on the part of the plaintiff.

The Court explained that the plaintiff was not entitled to summary judgment based upon the doctrine of res ipsa loquitur because circumstantial evidence only allows the jury to infer negligence – it does not require such an inference. Indeed, circumstantial evidence will generally only be sufficient to support a summary judgment motion when “the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.” Here, plaintiff only argued that the icy condition was created by the defendant’s use of a sprinkler system during the month of December. While the plaintiff established that the sprinkler system was in the defendants’ exclusive control, plaintiff failed to prove that her actions did not contribute to her injuries in anyway. Accordingly, the Court held that the plaintiff failed to meet the third prong of the res ipsa loquitur analysis and her cross-motion on summary judgment on the issue of liability was properly denied.

Here, each party sought opposite relief from the Court. Even though they wanted a vastly different outcome, the Second Department ultimately held that both parties based their motions on assumptions of fact that they could not support. The defendants could not establish that they lacked constructive notice because they could not say when the area was last cleaned or inspected prior to the plaintiff’s injury. Similarly, the plaintiff failed to meet the requirements for res ipsa loquitur because she failed to establish that she bore no portion of the responsibility for her injuries.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.