Practice point: To demonstrate prima facie entitlement to judgment as a matter of law
in a premises liability case, a defendant must establish that it did
not create the condition that allegedly caused the fall or have actual
or constructive notice of that condition. For constructive notice, a defect must be visible and apparent
and it must exist for a sufficient length of time prior to the accident
to permit the defendant to discover and remedy it.
Here, the defendants established, prima facie, that they did not
create or have actual or constructive notice of the alleged hazardous
condition, as the condition of the screws, which were hidden from
view, could not have been discerned by reasonable inspection. In
opposition, the plaintiff failed to raise a triable issue of fact. The
photographs of the accident site, which did not depict the broken
screws, and the affidavit of the plaintiff's expert, who never inspected
the staircase, were insufficient to defeat summary judgment.
Student note: Constructive notice will not be imputed where a
defect is latent and would not be discoverable upon reasonable
inspection
Case: Hoffman v. Brown, NY Slip Op 05798 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: A dog bite and the professional judgment rule.
