Evidence Case of the Week #6
Defendant moving for summary judgment in premises liability action failed to establish prima facie entitlement as it failed to show it did not create the dangerous condition or that it lacked constructive notice by establishing when the area was last inspected
In Pena v Pep Boys-Manny, Moe & Jack of Delaware, Inc., _AD3d_, 2023 NY Slip Op 02530 (2d Dept. 2023) the Second Department sets forth the elements for a defendant to establish prima facie entitlement to summary judgment by discussing the moving parties failure to demonstrate the absence of a triable question of fact for the two critical elements.
The plaintiff was injured while walking toward a parking lot behind an auto parts store owned by the defendant when a metal gate at the entrance to a storage area fell on his foot.
Pena explains the defendant’s burden of proof in moving for summary judgment:
A party in possession or control of real property has a duty to maintain the property in a reasonably safe condition (citations omitted). When such a party moves for summary judgment in a premises liability case, it has “the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” (citations omitted).
Pena v Pep Boys-Manny, Moe & Jack of Delaware, Inc., _AD3d_, 2023 NY Slip Op 02530 (2d Dept. 2023)
The Second Department analyzed defendant’s proof submitted to demonstrate it did not create the dangerous condition, and found it lacking:
Contrary to the defendant’s contention, its submissions in support of its motion for summary judgment failed to eliminate triable issues of fact as to whether it created a hazardous condition that caused the plaintiff’s injuries. The defendant submitted the deposition testimony of a service manager who explained that the subject gate, which enclosed an outdoor storage area adjacent to the store, was a sliding metal chain-link gate that was held in place by a track at the top. The service manager testified that it was his regular practice to remove the gate from its track every morning and lean it against the outside of the building to facilitate access to the storage area throughout the day. At the end of his shift, at approximately 3:30 p.m., the service manager would place the gate back on the track, slide it closed, and lock it with a padlock. The plaintiff’s accident occurred at approximately 5:00 p.m. The defendant’s submissions in support of its motion also included the deposition testimony of the plaintiff, who testified that, as he walked by the gate, the gate was struck by a gust of wind and fell down onto his foot. This testimony, if credited, indicates that the gate was not secured to the track, thereby raising a triable issue of fact as to whether the manager created the alleged dangerous condition that caused the plaintiff’s injuries by failing to properly secure the gate at the end of his shift that day (citations omitted).
Pena v Pep Boys-Manny, Moe & Jack of Delaware, Inc., _AD3d_, 2023 NY Slip Op 02530 (2d Dept. 2023)
The court next examined defendant’s proof supporting lack of constructive notice by tendering proof of when the area was last inspected and, again, found it lacking:
Here, the service manager testified at his deposition that it was his regular practice to inspect the area of the gate “two [or] three times a day,” but the defendant offered no evidence as to when the gate was last inspected on the date of the plaintiff’s injuries. The service manager’s testimony, which “merely referenced his general inspection practices” and failed to indicate when the area where the accident occurred “was last inspected . . . relative to the accident,” was insufficient to demonstrate a lack of constructive notice (citations omitted).
Pena v Pep Boys-Manny, Moe & Jack of Delaware, Inc., _AD3d_, 2023 NY Slip Op 02530 (2d Dept. 2023)
Given the deficits in the defendant’s moving papers, the motion court “should have denied the defendant’s motion without regard to the sufficiency of the plaintiff’s opposition papers (citation omitted),” and the order granting summary judgment was reversed.
Decision Date: May 10, 2023
Practical Practice Point
It is interesting to note that while the Second Department noted that “the defendant offered no evidence as to when the gate was last inspected on the date of the plaintiff’s injuries,” defendant did testify that he closed the gate, and therefore inspected the area at 3:30 pm, two hours before the plaintiff’s 5:00 pm accident. Accordingly, there was proof in the record of an inspection two hours before the accident.
So how close in time to the accident must the last inspection occur for the defendant to successfully claim lack of constructive notice? It is going to vary according to the totality of the circumstances surrounding the accident in question.
A last inspection nine hours before the accident was sufficient to establish prima facie entitlement in Perez v NY City Hous. Auth., 75 AD3d 629 (2d Dept 2010):
Shortly after midnight, while descending an interior stairwell in a building owned by the defendant, the plaintiff allegedly was injured when she slipped on a puddle of urine.
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Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony and an affidavit of Lynn Carter, the person assigned to clean the building. According to Carter, she had last inspected the stairwell at approximately 3:00 P.M. the previous day, approximately nine hours before the plaintiff allegedly was injured, and there was no liquid on the stairwell at that time. Additionally, the defendant submitted evidence that no one had complained about the condition of the stairwell between the time it was last inspected and the time of the plaintiff’s alleged injury (citations omitted).
Our working assumption is that the business operated on a nine to five schedule and that the duty to inspect the interior staircase did not extend into the overnight hours between the end of one workday and the start of the next. Still, 3:00 pm is at least two hours before the end of a “normal” workday, and that was precisely the amount of time in Pena between the time the defendant closed the gate and plaintiff was injured by it.
In Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034 (2d Dept 2010), proof of an inspection fifteen minutes before plaintiff’s accident was sufficient to establish prima facie entitlement:
On October 18, 2005, at approximately 9:00 A.M., the plaintiff allegedly tripped and fell on an entry mat as he entered the Rite Time Dairy grocery store . . . The plaintiff testified at his deposition that while he did not observe the condition of the mat prior to his fall, he noticed after he fell that it was “crumpled up like an accordion.”
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[Defendants’] met their prima facie burden on the issue of lack of constructive notice by submitting the deposition testimony and affidavit of Abdul Sattar that he had walked through the same entrance approximately 15 to 20 minutes prior to the plaintiff’s fall and observed the mats to be flat on the floor (citations omitted).
Again, the totality of the circumstances are key. For this reason, a last inspection thirty minutes before an accident (there was contrary proof in the record) did not establish prima facie entitlement in Colantuono v King Kullen Grocery Co., Inc., 2010 NY Slip Op 32382[U] (Sup Ct, Nassau County 2010):
The evidence submitted by defendant’s manager although relevant in opposing plaintiff’s motion, does not establish with sufficient certainty when or if the area was last inspected. The testimony of the manager with respect to his inspection of the area is not sufficiently detailed, precise or unambiguous to permit the conclusion that he did make an appropriate inspection. Moreover if he did inspect one half hour before the accident the court is not prepared to assume that, given the conditions that day and the prior incident, a half hour was enough as a matter of law to satisfy the defendant’s burden under summary judgement principles.