In Carriero v St. Charles/ Resurrection Cemetery, the Appellate Division reversed a Supreme Court decision and upheld the principle that notice is a mandatory element of a premises liability case.
The plaintiff alleged she was injured at the defendants’ cemetery in Nassau County. As she was visiting the graves of her family members, she took a step near one of the headstones and her left foot began to sink into the ground. The spot where her foot sank into the ground was covered with grass, and it appeared to be level. According to the plaintiff, her father had stepped in the exact spot seconds before her accident without incident.
The plaintiff sued in Kings County Supreme Court, and the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appealed.
The appellate court found that the defendants did not have notice of the alleged condition. A defendant who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence. Further, to constitute constructive notice, a dangerous condition “must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.”
In reversing the Supreme Court’s decision the Appellate Division ruled that summary judgment was warranted because the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not create or have actual or constructive notice of the dangerous condition before the incident occurred.
Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions.