In Ashton v. EQR Riverside A, LLC, 2015 NY Slip Op 07916 (Oct. 29, 2015), the court affirmed the dismissal of plaintiff’s trip-and-fall case. This case, like many premises liability cases, turned on the critical issue of “notice”.
From the decision:
It was undisputed that defendants did not have actual or constructive notice of the height differential between the recessed well, which was covered by carpeting, and the surrounding marble tile, which caused plaintiff’s trip and fall. The only evidence that defendants affirmatively created the condition by gluing the carpet to the floor of the well, failing to install a drainage system under the well, and improperly maintaining the carpet, causing it to become matted, was the testimony of plaintiff’s expert. However, his conclusion was speculative, since he did not examine the carpet that was present on the day of the accident and there was no evidence that the replacement carpet was identical. Plaintiff’s expert also failed to cite any industry standard or authoritative treatise supporting his opinion concerning proper maintenance and design of the area.