Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it. However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff's inability to identify the cause of his fall is fatal to a cause of action to recover damages for personal injuries because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.
The plaintiff's inability to testify as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence. Cases grounded on circumstantial evidence require a showing of sufficient facts from which the defendant's negligence and the causation of the accident by that negligence can be reasonably inferred. However, where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused the accident, any determination by the trier of fact as to causation would be based upon sheer speculation.
Adzei v. Edward Bldrs., Inc., NY Slip Op 05580 (2d Dep't November 8, 2023)
