Defendant Wins in Trip and Fall Case, Where Plaintiff Could Not Demonstrate “Affirmative Negligence” Exception to “Prior Written Notice” Requirement

In Pulver v. City of Fulton Dept. of Public Works (App. Div. 4th Dept. Jan. 3, 2014), the court reversed the lower court’s denial of defendant’s motion for summary judgment, and dismissed plaintiff’s complaint.  There,

[plaintiff sued] to recover damages for injuries that she allegedly sustained when she tripped and fell in a hole in the grassy area between the curb and the paved portion of the sidewalk. The hole was covered with a piece of plywood and was located adjacent to a catch basin that was part of the storm water drainage system owned and maintained by defendant City of Fulton (City).

The trial court denied both parties’ motions for summary judgment, finding that although plaintiff failed to provide the City with the required prior written notice of the danger presented by the hole, there were issues of fact whether the City engaged in affirmative acts of negligence.

The Appellate Division held that the court erred in denying defendant’s motion, reasoning:

Because the City established in support of its motion that it did not receive prior written notice, the burden shifted to plaintiff to demonstrate the applicability of an exception to that requirement. [T]he court erred in determining that plaintiff met that burden by establishing that such an exception applies, i.e., that the City was affirmatively negligent. Although plaintiff submitted a preaccident “work order” to the City for the location in question, she failed to adduce any evidence that the City placed the plywood over the hole in which she fell. Further, the City established that, in response to the “work order,” it dispatched an employee who testified that he inspected the area in question, found nothing wrong with it, and performed no work. Thus, plaintiff failed to raise an issue of fact “whether the City created a defective condition within the meaning of the exception” to defeat defendants’ motion.

In addition, the deposition testimony of plaintiff’s neighbors did not raise an issue of fact as to whether the City placed the plywood over the hole. Though they testified that there was “a cone” in the hole, neither testified that the cone belonged to the City or that a City employee placed it there.

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