Court of Appeals finds Question as to Constructive Notice Despite Security Footage (NY)

Premises cases can hinge on notice of an allegedly defective condition, and an eventual accident. For defendant property owners, proving that you did not create or have notice of the dangerous condition is a continuous uphill battle. It is even more difficult when the condition is water or debris that is transient and could manifest at any time.  Under such circumstances, a defendant property owner must show when the area was last inspected and/or cleaned on the date of the accident to establish that the condition was not present for a sufficient period of time to constitute constructive notice.

In Parietti v. Wal-Mart Stores, Inc., 140 A.D.3d 1039, 34 N.Y.S.3d 474 (2d Dept. 2016), reversed (Sept. 14, 2017), plaintiff slipped and fell on a wet spot near an ice machine inside a Wal-Mart store. Wal-Mart submitted affidavits from store employees who were working in the area at and around the time of the accident and surveillance footage which showed a Wal-Mart employee constantly walking and inspecting the area where the accident occurred. The Appellate Division, Second Department, reversed the trial court’s initial denial of the defendants motion and found that defendant Wal-Mart established that the alleged wet condition was not present for a sufficient period of time for Wal-Mart’s employees to discover and remedy it prior to the accident. This was supported by plaintiff’s own testimony that she did not see the water when she initially walked in the area.

Thereafter, plaintiff sought leave to appeal to the Court of Appeals. The Court of Appeals heard the case and concluded that despite the evidence presented, a question of fact exists as to the length of time the water was present and if it were long enough that Wal-Mart should have discovered and remedied the condition. While the Court did not elaborate, it is possible that the footage actually hurt Wal-Mart’s position in that the area was constantly inspected so the condition, should have been noticed and cleaned immediately.

This decision highlights the difficulty in obtaining summary judgment on a slip and fall case for a defendant. It is even more difficult when the defendant does not have footage or a witness to testify about when the area was last inspected or cleaned on the date of the accident.  We expect Parietti to be widely cited by the plaintiff”s bar in summary judgment motion practice going forward.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Lack of Specific Defense Testimony Prompts SJ Reversal in Premises Case (NY)

In a premises liability context, a property owner must establish that they did not create a dangerous condition that allegedly caused a plaintiff’s accident and that they did not have actual or constructive notice of the condition. In recent years, Court have raised the burden of proof for defendants to establish that they did not have constructive notice of a condition.

In Lombardo v. Kimco , LLC,2017 NY Slip Op 06531 (2d Dept. 2017), plaintiff slipped and fell on a wet and slippery substance on the floor of the defendants restaurant, Carrabba’s Italian Grill, LLC. The defendants established through testimony and affidavits that they did not create the wet or slippery condition and that they had a regular inspection and cleaning procedure in place so could not have had constructive notice. The Supreme Court agreed and granted summary judgment in the defendants favor.

The Appellate Division, Second Department, overturned the decision because the defendant failed to establish that the cleaning and inspection procedure was followed on the date of the accident and when the area had last been cleaned and inspected prior to the accident.  The Court found that without specific testimony from someone who cleaned or inspected the premises prior to the accident the defendant failed to establish that they did not have constructive notice of the condition.  In other words, the existence of maintenance protocols was not enough;   the property owner needed to show that it followed those protocols.

This increased burden for a defendant poses difficulty when a defendant is trying to establish lack of constructive notice. In most instances, the lawsuit has arisen years after the accident and the person who did the inspection may no longer be employed by the defendant. It is incumbent upon defendants to get statements from their employees when they are first notified of a loss and to keep in contact with them even if they leave. If defense counsel can’t locate the former employee who actually did the cleaning or inspection, summary judgment will be an uphill battle.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.


Charitable Immunity Prevails Even Where Non-Profit Rents to For-Profit Organization (NJ)

The New Jersey Charitable Immunity Act (CIA) bars negligence claims against  nonprofit corporations organized exclusively for religious, charitable, or educational purposes.  An entity qualifies for charitable immunity when it is formed for non-profit, educational, religious or charitable purpose, and was promoting such objectives and purposes at the time of the injury to a plaintiff who was a beneficiary of the organization’s works.

In Losado v. Princeton University, the court examined whether Princeton University, a non-profit educational organization, was entitled to Charitable Immunity when the plaintiff was injured on its campus. The key question was whether the University was engaged in its educational objectives when renting a pool on campus to an outside organization.

The plaintiff’s daughter participated in a swim meet hosted by the Princeton Tigers Aquatic Club, an organization not affiliated with the university other than pool rental.  The plaintiff was injured in a fall as she left the swim meet when she stepped into a depression adjacent to a walkway.

Princeton University filed a motion for summary judgment, arguing that they were immune from suit under the CIA.  The motion judge found that the plaintiff was a beneficiary of the University at the time of her injury, and therefore dismissed the claim under the CIA.  On appeal, the plaintiff argued that the Judge erred since the renting of a facility on the campus was not part of the “educational pursuits” that the University was organized to advance. Specifically, the plaintiff argued that youth sports by an outside organization was not an educational objective that Princeton was organized to advance. They further noted that the PTAC was not a charitable organization.

Per statutory requirement, the Appellate Court liberally construed the CIA to afford immunity to a non-profit entity even when renting facilities to members of the general public for social and recreational activities.  So long as the non-profit facility is not dominated by rentals of for-profit entities, the use of the facilities serves important social and recreational needs of the community.

Importantly, this case affirms once again that an organization is entitled to charitable immunity even when renting a portion of its property to a non-charitable organization.  These type of rental agreements are common between organizations, and will not prevent the non-profit entity from asserting and succeeding on a charitable immunity defense.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at


Slippery When (possibly, maybe) Wet – Not Enough to Defeat SJ Motion (PA)

On August 15, 2017, the Superior Court of Pennsylvania affirmed summary judgment in favor of Coakley & Williams Hotel Management Company in Demisew v. Coakley & Williams Hotel  The case stems from a slip and fall at a Days Inn, managed by Coakley & Williams on October 16, 2013.  Specifically, plaintiff Gela Demisew fell down a stairwell at the Days Inn, due to an allegedly slippery step.  She alleged that Coakley & Williams were negligent in allowing this dangerous condition to persist.

In September 2015, the trial court granted summary judgment in favor of Coakley & Williams and the Plaintiff filed a timely appeal.  On appeal, the Plaintiff argued that Coakley & Williams owed her a duty, as a business invitee, to exercise reasonable care in discovering the dangerous condition.  To support her assertion, the Plaintiff alleged that Coakley & Williams only had the stairwell cleaned on a weekly or “as needed” basis.  Further, the Plaintiff asserted that it rained on the day of the accident and someone could have tracked water into the stairwell as a result.

However, the Plaintiff testified that she did not know the substance she slipped on and never revisited the accident site.  Further, the director of maintenance at the Days Inn testified that the maintenance staff walked the property twice per day including the stairwells.  The director of maintenance also noted that the stairwell was cleaned once per day and no issues were documented on the date of the accident.

Thus, the court held that the Plaintiff merely speculated at the cause of her slip and fall and did not put forth any evidence to show whether the step was slippery or that the hotel had constructive notice of the alleged dangerous condition.  Thus, the grant of summary judgment was proper.   Had plaintiff testified that she was certain she slipped on tracked in rain water, as opposed to being uncertain of what she slipped on, she may have raised an issue of fact as to defendant’s negligence.   Thanks to Garrett Gittler for his contribution to this post.  Please email Brian Gibbons with any questions.

Homeowners Lose MSJ after Invitee Steps Through Sheetrock Ceiling (NY)

Obviously, a homeowner never wants to be sued in a personal injury lawsuit arising out of an accident on his or her property. Unfortunately, simply owning the property is enough to place a duty of care onto the owner of the property to maintain it in a safe condition.   This duty of care extends to anyone that may come onto the property for any reason, whether a homeowner knows of their presence or not.

On August 23, 2017, the Court affirmed the trial court’s order denying the defendants motion for summary judgment in Gallardo v. Gilbert, 2017 Slip Op 06256 (2d Dept. 2017). The plaintiff was at the defendants’ home to perform cleaning services, including cleaning out the attic above the garage. While in the attic, plaintiff stepped from a plywood landing, and fell through the sheetrock ceiling of the garage below sustaining injuries.

The Court upheld the standard that a homeowner has a duty to maintain the premises in a reasonably safe condition. The only time in which a homeowner does not have a duty is when a condition is open, obvious and not inherently dangerous.

The defendant homeowners argued that plaintiff stepped onto a portion of the attic that did not have the plywood to step on and that the danger of falling through the sheetrock ceiling was open, obvious and not inherently dangerous. The Court found that the homeowners failed to establish that the insufficient weight-bearing capacity of the sheetrock ceiling was open, obvious and not inherently dangerous as a matter of law.  In fact, the condition may have constituted a “trap,” making an injury all the more foreseeable.

In our practice, we come across of claims just like this one, where an invitee was injured in a client’s. With the Court continuing to uphold the stringent duty to maintain a private home, the uphill battle to get these cases dismissed continues getting steeper.  Sadly, all invitees should be regarded as potential claimants.  (Sometimes, the advice of defense counsel isn’t as neighborly as we would like!)   Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions.


Store Owes No Duty to Control Unexpectedly Rowdy Patrons (PA)

On August 17, 2017, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of several defendants in Reason v. Kathryn’s Korner Thrift Shop et al.  The case involves a fight at a thrift shop in Philadelphia.  On the date of loss, Reason went shopping at Kathryn’s Korner Thrift Shop, where Defendant Riley was a cashier, and her daughter, Thomas, was also present at the store.  (Thomas has a history of mental illness, but there is no evidence that she was violent.)  As Reason was making purchases at the register, Thomas accused Reason of throwing something at her mother, and Reason and Thomas began fight.Riley pushed a panic button at the store and called the police with her phone.

We surmise Reason lost the fight, because she filed suit against Riley, Thomas, the thrift store, and the other owners of the property, alleging various claims for negligence and assault and battery.  All of the defendants, except for Thomas, were granted summary judgment.  Reason then appealed on the issues of whether the defendants owed her a duty to protect her against acts by third persons and whether they breached a duty to provide aid.

In Pennsylvania, there is generally no duty to control the acts of third parties unless a defendant stands in a special relationship with either the actor or the victim.  The relationship between a business and its invitee is one of those relationships.  Pennsylvania then follows the Second Restatement of Torts section that states that a possessor of land owes a duty to invitees for negligent or intentional acts by third parties only if they can reasonably anticipate such conduct.  The court found no evidence that defendants should have reasonably anticipated Thomas’s violent behavior.

When it comes to a duty to aid, Pennsylvania has rejected the Restatement of Torts and only imposes a duty upon businesses to call for medical professionals or police when necessary.  Businesses and their employees are under no duty to jump into the role of a medic or police officer since this would then place untrained persons in harm’s way as well.  The court again affirmed the lower court’s decision and found that because Riley pressed the store’s panic button and called the police on her phone, that she and the other defendants had fulfilled their duty to come to Reason’s aid.  As such there was no breach.  Thanks to Peter Cardwell for his contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Slip and Fall Case Doesn’t Hold Water (PA)

A Plaintiff was denied recovery in a slip and fall case when a jury concluded that he failed to prove that a water leak caused his injuries.  In Bowman v. Giant Eagle, C.P. Allegheny No. GD-14-016640, the plaintiff sued a Giant Eagle grocery store in Pittsburgh, claiming that he slipped on liquid near a water fountain, adjacent to the entrance to the men’s room.  The plaintiff alleged that Giant Eagle was negligent in allowing the dangerous condition to exist.

In support of his claim, the plaintiff alleged that an employee at the store had walked by the accumulation of water at the time the accident occurred, but did not address the issue.  The plaintiff also claimed that the water fountain was leaking and that the store had failed to repair the leak.

The plaintiff sustained multiple fractures to his right leg, underwent surgery and had hardware implanted.  The plaintiff later participated in physical therapy over the course of a few months, and eventually underwent a second surgery to remove some of the hardware.  The plaintiff sought damages for medical costs as well as past and future pain and suffering.

Giant Eagle did not dispute the plaintiff’s injuries or his treatment, but did argue that there was no evidence to support the plaintiff’s claim that the water fountain had been leaking.  Giant Eagle cited a store manager’s incident report that found no water on the floor and no leaking from the fountain in support of its defense.  Ultimately,  the jury found that Giant Eagle was negligent, but that its negligence was not a factual cause of any harm to the plaintiff.  This case serves as an ever-important reminder that plaintiffs bear the ultimate burden of proving each and every element of their case, and that an effective defense will force plaintiffs to carry this burden at every step of the litigation process.  Just because a defendant may have been negligent does not equate to proximately causing a plaintiff’s injury.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.


Residential/Commercial Property Owner Gets By On Sidewalk Liability (NJ)

New Jersey distinguishes between commercial and residential property to determine the responsibility of an owner to those using public sidewalks. A purely residential property owner owes no duty to maintain a sidewalk unless a repair is negligently made.  On the other hand, a commercial property owner has a duty to take reasonable care to prevent foreseeable harm.  The gray area is where a residential property is not owner occupied but is used for commercial purposes.

The Appellate Division recently considered the proof required to establish that a property owner of a three family home was liable for a slip and fall on an uneven sidewalk. In Perez v. Fernandez, the three family home was not owner occupied but the owner’s parents lived in one unit and managed the other two.  In a footnote, the court made an assumption that the property was commercial in nature because it was not owner occupied despite the family member’s occupancy.  Once this assumption was made, the court evaluated the duty under the commercial property standard.

Despite this classification, the court seemed to scrutinize plaintiff’s proofs giving the defense the benefit of the doubt. In part this may be due to the plaintiffs’ development of the case.  The plaintiff, Frictiana Perez fell on the sidewalk near ongoing construction in the street. Initially they took an alternative approach and had two engineering reports prepared. One pointed to the construction activities that may have caused damage to the sidewalk, and the other faulted the abutting property owner.

During discovery, the plaintiffs served the liability expert report identifying the construction contractors the responsible party. After the close of discovery, plaintiff’s counsel said the report had been served by mistake.  Plaintiff then served the second expert report concluding that the displaced sidewalk caused plaintiff’s fall and placed the liability on the defendant homeowner for negligent maintenance.  The Court barred the late served report, granted the defendants’ motion for summary judgment, and then denied plaintiffs’ motion for reconsideration.

In affirming the trial court’s dismissal in favor of the defendants, the Court explained: “[P]laintiffs needed to show that defendants had breached their duty owed to those walking on the sidewalk abutting their property.” It is well established that “commercial property owners would be liable for injuries on the sidewalks abutting their property that are caused by their negligent failure to maintain the sidewalk in reasonably good condition.” In its analysis, the Court held that the Fernandez family’s duty was to prevent “foreseeable harm.”  In other words, plaintiffs must prove that the defendants had actual or constructive notice of the dangerous condition that caused the injury, in this case, the displaced sidewalk.

Without an expert report, the Court ruled that the plaintiffs could not meet this burden. The  defendants denied any awareness of the raised sidewalk slab.  The Court found no evidence that the defendants should have known about the problem with the sidewalk.  “To make such a showing, plaintiffs needed evidence of how the slab was damaged and how long the slab was damaged. In the absence of expert testimony, there was no competent evidence to show defendants were negligent.”

The appellate court held that the trial court properly granted summary judgment to the defendants. Specifically, plaintiffs could not establish negligence as a matter of law without an expert to testify how and when the sidewalk had been damaged.  In a questionable liability case that lacks proof of the defendants’ actual notice of a hazardous or defective condition, the lack of an expert report confirming the defendants’ constructive notice of the condition may be the hook a motion judge needs to dismiss a complaint.

Thanks to Ann Marie Murzin for her contribution.

For more information, contact Denise Fontana Ricci at


Sand traps and Other Litigation Hazards (NY)

John MacIsaac was walking from the 12th green to the 13th tee box on a public golf course at Eisenhower Park when he  tripped on a sprinkler system coupling valve in a grass-covered hole, causing him to fall to the ground and sustain injuries which ultimately led to his death. In the ensuing wrongful death litigation, MacIsaac v. Nassau County, the question became whether MacIsaac had assumed the risk of a participant in a recreational sporting contest.

A party is deemed to have assumed the risk associated with an activity when engaging in sport or recreation, but only with respect to the commonly appreciated risks inherent in and arising out of the nature of the sport generally. This assumption of risk would apply to risks involved in the playing surface and open and obvious conditions.  However, if there were a concealed condition on the golf course or the inherent risks of golf were somehow unreasonably increased, the doctrine would not apply.

The County of Nassau sought summary judgment on the basis of this legal theory. In granting this motion, the judge rejected evidence submitted by plaintiff to oppose the motion, including plaintiff’s photographs, due to a purported violation of CPLR 3101, i.e. failure to disclose an authenticating witness.  Likewise, the plaintiff’s expert was disqualified as he relied upon the photographs.

The Second Department considered the admissibility of the supporting evidence in opposition, as well as the underlying theory of the case in overturning the dismissal of plaintiff’s case. The court found that authenticating information for the photographs was not necessary and that the expert opinion should have been considered.  After considering all of the evidence, the higher court held that plaintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at

Now You See It… Now You Don’t … A Tale of Two Trivial Defects (NY)

Property owners have a duty to keep their premises safe, and to protect passersby from dangerous or defective conditions. While courts will generally let a jury decide whether a dangerous or defective condition exists, property owners may be entitled to move for summary judgment where they can show, as a matter of law, that the alleged dangerous or defective condition was “trivial.” How a landowner demonstrates that a defect is “trivial,” however, may affect whether they receive summary judgment.

Two recent Second Department decisions, Kavanagh v. Archdiocese of the City of New York and Chojnacki v Old Westbury Gardens, Inc, demonstrate why landowners must take care to show, rather than tell, the court why an alleged defect is “trivial.” In Kavanaugh, plaintiff allegedly tripped and fell on an interior hallway tile while exiting a church owned by defendant. The Archdiocese moved for summary judgment, claiming that the alleged tile defect was trivial as a matter of law. In support of its motion, the Archdiocese submitted photographs of the alleged defect, measurements of the tile (which demonstrated that the defect involved, at most, a one-eighth inch height difference), and plaintiff’s own testimony of the time, place, and circumstances surrounding her injury. The trial court denied the Archdiocese’s motion, finding that an issue of fact existed as to whether the defect was “trivial.”

The Second Department reversed the trial court on appeal and granted summary judgment to the Archdiocese. The court first noted that while there is no specific “dimension test” to determine whether a defect is “trivial,” the court should look the individual facts of the case, such as the measurements and appearance of the defect and the circumstances surrounding plaintiff’s injury, to determine whether the defect is “trivial” or actionable. The court then determined that the Archdiocese, via its photographic evidence and plaintiff’s testimony” met its burden of proof to show that the defect itself was insignificant, and that there was nothing about the defect itself or the surrounding area that would increase the risk of injury to people as they walked by the defect.

On the same day that the Second Department granted summary judgment in Kavanaugh, it reversed summary judgment to the defendant landowner in Chojnacki, holding that the landowner had failed to establish that the alleged defect, a raised brick on a pathway, was “trivial” as a matter of law. The landowner submitted an expert affidavit and photographic evidence from the plaintiff depicting her on the ground shortly after she fell.  However,  the court noted that it could not see the raised brick on which she allegedly fell in the submitted photographs, and therefore could not tell whether the defect was in fact “trivial” or not.

When it comes to demonstrating that a defect is “trivial,” more evidence is better! High-quality photographs of the alleged defect and the surrounding area—with measurements—will go a long way towards showing the court why the alleged defect is not actionable. Absence of such evidence is noticeable, and likely fatal to any summary judgment motion.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at