A recent Second Department case, Martino v. Patmar Properties, Inc., illustrates the operation of the summary judgment procedure in a premises liability case. There, the plaintiff’s father was injured when he fell in an apartment he rented from the defendant.
The court explained the general law:
A property owner has a duty to maintain the property in a reasonably safe condition. In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence. A plaintiff’s inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation.
Applying the law to the facts, the court explained why defendant failed to carry its summary judgment burden:
[I]n support of its motion the defendant submitted a copy of the plaintiff’s deposition testimony, at which he testified that the floor of the hallway in the decedent’s apartment was “warped” and “bowed.” He testified that he was walking “right behind” the decedent when he fell, that he saw him fall, and that he fell because “the floor always went down in that area. . . . [H]is foot went down, and wasn’t [on] sturdy ground and he went down.” He also stated that “My father fell to the left because that [was] where the floor went down and that is where he fell.” In light of this testimony, the Supreme Court erred when it determined that the plaintiff could not identify the cause of the decedent’s fall without resorting to speculation. The defendant also failed to demonstrate, prima facie, that it did not have actual or constructive notice of the allegedly dangerous condition, as the plaintiff testified at his deposition that the decedent had been making “ongoing” complaints to the defendant about the warped condition of the floor since 2001, and that he had also notified the defendant of the warped condition of the floor himself several times before the accident. (Emphasis added.)
Next, the court addressed the issue of “proximate cause”. Here’s the law:
Generally, it is for the trier of fact to determine the issue of proximate cause. However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts. Additionally, there may be more than one proximate cause of a plaintiff’s accident and injuries. To sustain the burden of proving a prima facie case of proximate cause, “the plaintiff in a negligence action must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury.
Again, the defendant failed to carry its burden on summary judgment, due to (among other things) its failure to support its argument with expert medical evidence:
[D]efendant failed to establish, prima facie, that the subject accident was not the proximate cause of the decedent’s injuries. The plaintiff alleged in his bill of particulars that the decedent suffered a subdural hematoma as a result of the subject accident. In support of the branch of its motion which was for summary judgment dismissing the complaint, the defendant submitted documentation which showed that from 2004 to 2009 the decedent had instituted three actions to recover damages for personal injuries—two after suffering trip and fall accidents, and one after debris from a dilapidated ceiling fell on his head. It also submitted copies of the decedent’s medical records which showed that the decedent did not seek medical treatment until almost two months after the subject accident. Based on that documentation, the defendant argued in an attorney affirmation in support of the motion that it was just as likely that the decedent’s injury was caused by one of his prior accidents. However, the defendant failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to submit expert medical evidence that the decedent’s subdural hematoma was not caused by the subject accident.
Having concluded that defendant failed to carry its burden on summary judgment, the court (without considering plaintiff’s opposition papers) reversed the Supreme Court’s order granting defendant summary judgment.