Practice point: The Appellate Division determined that the motion court properly found that defendant made a prima facie showing that there was no dangerous condition in existence when plaintiff slipped and fell, and that it was therefore entitled to summary judgment. In opposition, plaintiff failed to raise a triable issue of fact.
Plaintiff testified that he slipped on the wet ramp minutes after it had stopped raining, and that he did not see any debris, substances, or other defects on the ramp prior to his attempted ascent. Mere wetness on a walking surface due to rain does not constitute a dangerous condition. Moreover, there is no evidence that defendant created the condition that caused plaintiff's accident, nor does the record show that defendant had constructive notice of a problem with the ramp.
As to constructive notice, plaintiff's expert report merely described the surface of the ramp as "worn, smooth and polished," concluded that "the wet condition . . . would have made the ramp slippery and dangerous." This conclusion, unsupported by any empirical data obtained by scientific analysis, was insufficient to demonstrate an issue of material fact.
Student note: A defendant moving for summary judgment in a slip and fall action has the initial burden of making a prima facie demonstration that it neither created the dangerous condition, assuming that the condition existed, nor had actual or constructive notice of its existence. If a defendant establishes prima facie entitlement to such relief as a matter of law, the burden shifts to the plaintiff to raise a triable issue of fact as to the creation of the defect or notice thereof.
Case: Ceron v. Yeshiva Univ., NY Slip Op 02680 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Contracts, and tort liability to a third party.
