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Residues and don'ts: Circumstantial evidence fails to create issue of fact about proximate cause of alleged slip and fall

Josephine Torres v. Sanitation Salvage Corp. and The Hunts Point Terminal Market, Inc., __ A.D.3d __ (1st Dep't 2022)

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A unanimous Appellate Division panel affirmed an order granting summary judgment for defendant and dismissing the Complaint as against it where plaintiff's only evidence of causation was residue she allegedly found on her pants.

Plaintiff had alleged that she was injured when she slipped and fell because of residue from discarded fruits and vegetables on a ramp where she worked. She testified that she had seen fruit and debris on the ramp in the morning but not in the afternoon, which would have been after a routine cleaning. When she walked down the ramp at the end of the day, she allegedly slipped and fell. She claimed that she must have slipped on fruit residue because her clothes were sticky after her fall, even though she never saw any residue on the ramp. She commenced an action for damages for her injuries, and at the close of discovery defendants moved for summary judgment which was granted. Defendants submitted a cleaning schedule showing the area was cleaned an hour prior to the alleged fall and plaintiff's corroborating testimony. In opposition, plaintiff contended that her clothes were wet with residue after the fall - ignoring the lack of any previous complaints about residue and her own testimony that she did not observe any residue in the area. The motion court concluded that "[e]vidence of wetness on plaintiff's pants simply does not, in isolation, suffice to support a reasonable inference that the injury was sustained wholly or in part by a cause for which [the defendant] was responsible." Plaintiff appealed, contending she had raised an issue of fact by way of circumstantial evidence of residue that might have caused her fall. Defendant, in response, showed not only that plaintiff had not, and could not, identify the cause of her fall, including by such circumstantial evidence, but also that it had no notice of any dangerous condition and there was no recurring condition.

The Appellate Division, First Department, unanimously found that defendant had established entitlement to judgment as a matter of law by demonstrating that it neither created nor had notice of the allegedly defective condition of the walking ramp. The Court held that, "[w]hile plaintiff claims that it was residue from discarded fruits and vegetables that caused her to fall, there is no evidence tending to show that defendant created or had actual notice of the condition, or how long it had been on the stairwell before the accident. Moreover, the evidence, including plaintiff's own testimony, establishes that [co-defendant], which [moving defendant] hired, cleaned the area of plaintiff's accident within the hour preceding the accident. Plaintiff's past observations of the area at best tended to show that defendant had only a general awareness of residue on the ramp and were thus insufficient to raise an issue of fact as to constructive notice."

AGF&J Associate James Brown briefed and argued on behalf of the Defendant-Respondent.

Attorneys

James M. Brown

Practice Areas

Premises Liability