In Sharif v. Dominant Domain, the NJ Appellate Division upheld the trial court’s grant of summary judgment to a business owner who was sued by a plaintiff injured in a slip and fall. Finding that plaintiff failed to offer competent evidence to demonstrate actual or constructive notice of a dangerous condition, the Court held that there was no genuine issue of material fact regarding notice of any hazard prior to plaintiff’s fall.
In her deposition, plaintiff testified that she slipped and fell on ice while descending exterior stairs at the rear entrance of defendant’s commercial building. She had not seen any ice earlier when she was ascending the stairs and later did not notice any when she began to make her way down the stairs. She testified that she “started down the stairs, and ended up on the ground.” She claimed she saw ice on the bottom steps, but could not recall exactly how many steps had ice. Plaintiff further testified that she did not recall seeing the ice that she believed caused her fall, and did not remember how many steps she took or which step she was on when she fell. The weather was clear at the time of the accident and it had not snowed or rained.
Defendant testified that she did not have written procedures for inspecting the steps in the winter, but that she and her manager checked the stairs each time they entered or exited the building. A shovel and salt were kept nearby to remove any snow or ice when required. She noted that the weather was cool, but not freezing, on the date of the accident and that there was no precipitation on the steps.
The defendant moved for summary judgment at the close of discovery on the basis that there were no disputed issues of material fact and no evidence to demonstrate that defendant had any actual or constructive notice of a dangerous condition on the stairs. Plaintiff countered that defendants caused an inherently dangerous condition, which negated establishing notice. Plaintiff further argued that there was a leak in the gutter over the steps that defendant failed to discover and contended that a jury question existed as to whether defendant had adequate procedures to check the stairs for ice. Noting the lack of an expert liability report to establish a standard of care for snow removal protocols, and the undisputed fact that defendant inspected the steps multiple times a day, the trial court found the record “devoid” of any evidence showing that defendant know of a dangerous condition or that there was a dangerous condition.
On appeal, the Appellate Division noted that a plaintiff has the burden of propounding evidence showing defendant had actual or constructive notice of any alleged dangerous condition for an injury occurring in an exterior pathway. The Court further noted that a defendant could counter a plaintiff with evidence that it conducted regular inspections of the site where the injury occurred. With respect to constructive notice, the court cited previous case law holding that such notice is established by proof that the condition existed “for such a length of time as reasonably to have resulted ins knowledge and correction had the defendant been reasonably diligent.”
After reviewing plaintiff’s arguments in light of the record, the Court agreed that no genuine issue of material fact existed as to the existence of any actual or constructive notice. The Court pointed to the following facts to support its conclusion: 1) plaintiff could not recall seeing ice before or after her fall; 2) plaintiff failed to produce any documentary evidence of weather conditions that could have proven ice accumulated on the steps between the time she entered the building and then left the building; 3) plaintiff could not recall the last time it snowed or precipitated; 4) defendant frequently checked the exterior paths around the building; and 5) defendant did not see any ice in the area of the stairs either before or after the accident. Accordingly, the Court found that plaintiff could not demonstrate defendant had actual or constructive notice of an icy condition, so defendant was entitled to judgment s a matter of law.
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