Earlier this week the Supreme Court Appellate Division, First Department ruled that the defendant had not met its prima facie burden for an award of summary judgment in a Bronx slip and fall case. The fall occurred at the Bronx Zoo, where the plaintiff allegedly slipped on a patch of ice outside a restaurant within the park.
As the Court states in its ruling, to warrant summary judgment in a slip and fall on ice case, the defendant must “proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident.” Here, the defendant offered testimony from a supervisor, who testified as to policies and procedures for dealing with icy conditions in place at the zoo. While the testimony that she provided would seem a basis for a reasonable effort to remove the hazardous condition, the Court ruled that this was not enough. As the supervisor had not visited the site after the storm and before the fall, she had no personal knowledge of the conditions present at the time of the fall. She also had no personal knowledge of the steps taken to alleviate a potentially hazardous condition in this particular instance. Simply testifying as the the zoo’s procedures was insufficient to meet the burden for summary judgment.
It is interesting to note that even had the defendant met its prima facie burden, the First Department still would have reversed the finding of summary judgment on this appeal. The Court found that in response to the summary judgment motion, the plaintiff had raised triable issue of fact with respect to defendant’s notice of the icy condition and the overall upkeep of the sidewalk, which could have prevented the condition from being corrected. With the reversal of summary judgment, the case will return to Bronx Supreme Court to be heard.