Notice: The Element That Makes Or Breaks A Slip And Fall Case

Property owners and businesses in New York City are required to properly maintain and keep safe the exterior and interior walking surfaces, whether it be the sidewalk adjacent to their premises, pathways leading from the sidewalk into their premises or the actual floors situated in the building or home itself. If these walking surfaces are not safe, there exists a requirement either to remedy the unsafe condition in a reasonably timely manner or to warn innocent passersby of the dangerous condition. Nevertheless, injuries caused by slips and falls in the New York City are prevalent.

Many times, if a lawsuit is commenced, property owners will ask the court to dismiss the slip and fall case against them. Firstly, the court will look to the cause of the accident and what notice, if any, the property owner had of the defect or dangerous condition in or on the walking surface. Secondly, the court will examine what the property owner did to repair the defect or remedy the dangerous condition or in the alternative what notice of the defect or dangerous condition was given to the public. Notice can take the form of a warning sign, barricade or any other device or person advising the public of the dangerous condition. If the injured party can show the court that the property owner had notice of a hazardous condition prior to the accident and did nothing to remedy it, or the property owner did not give notice or warning of a known hazardous condition, the court will not dismiss the lawsuit and permit the case to go forward.

The court searches the record for answers to specific questions in determining whether a slip and fall case should be dismissed or allowed to proceed to trial;

  1. Did the property owner or landlord cause or create the defective or dangerous condition?
  2. Did the landlord or property owner have actual notice of the unsafe condition (communicated by letter, e-mail or phone call, specifically informing the property owner or landlord about the unsafe condition of the walking surface)?
  3. Did the landlord or property owner have constructive notice of the unsafe condition (they knew or should have known of the hazardous condition because it was present for a long enough period of time to discover and remedy the dangerous condition)?

Most people believe that injuries caused by a dangerous condition, i.e., a broken sidewalk or a slippery walking surface, is undoubtedly and automatically the property owner’s fault, which is not always the case. If the answer to each of the three above questions is “No”, the injured party’s case will probably be dismissed by a court. In order for the injured party’s case to be successful, the answer to at least one of the questions listed above must be “Yes”; that the property owner did cause the hazardous condition or had actual or constructive notice of a hazardous condition prior to the slip and fall.

The outcome of a slip and fall case always turns on the facts and the proof presented to the court. The following are two examples:

Stellman v. New York City Transit Authority is a case where the court permitted a slip and fall case to proceed to trial.  Mr. Stellman argued that city employees knew or should have known of ice formation on subway steps due to snow and freezing rain ending 15 hours prior to Mr. Stellman's fall on the icy steps.  Mr. Stellman was able to show (through an expert meteorologist,) that no new snow or ice occurred after his fall, and the temperature did not rise above 30 degrees once the snow and rain stopped.  Mr. Stellman satisfied the court that the city's employees had enough time to clear the ice, which could have prevented Mr. Stellman’s fall.  The court determined that the city had constructive notice and allowed Mr. Stellman’s case to proceed to trial.

On the other hand, in Brenowitz v. Commerce Bancorp , a woman slipped and fell on a wet marble floor at a New York bank during a rainy day.  She fractured her wrist and sued the bank claiming the marble floor in the bank was unusually slippery and dangerous when wet.  The bank presented proof that there was a storm in progress at the time of the accident; that it did not create the wet condition, nor could it remedy the wet condition while the storm was in progress.  As a result, the court dismissed Ms. Brenowitz’s case.

If you have suffered injuries due to a slip and fall caused by a dangerous walking surface condition, talking with an experienced personal injury attorney is the first and best step to take. The attorney can help determine if a legal claim can be pursued. The personal injury attorney will also provide guidance and counsel to help resolve medical and financial issues, and will seek the maximum recovery for pain, suffering, medical expenses, and any lost income resulting from the injuries sustained in the fall.