Wednesday, September 21, 2011

Judge Terrence Nealon of Lackawanna County Allows Slip and Fall Case to Proceed Based Upon Circumstantial Evidence of Constructive Notice

In his September 15, 2011 Opinion in the Lackawanna County slip and fall case of Filippova v. Community Bank and Trust Co., No. 2009 - Civil - 6184 (C.P. Lacka. Co. Sept. 15, 2011 Nealon, J.), Judge Terrence Nealon discussed the recurring issue of the sufficiency of circumstantial evidence of a property owner's constructive notice of the presence of a dangerous condition (i.e., water on the floor).

This matter involved a personal injury suit brought against a bank based upon a slip and fall allegedly as a result of water on the tile floor of a bank lobby.  In his Opinion, Judge Nealon provides a thorough analysis of the law of actual and constructive notice of defective conditions in premise liability slip and fall matters.

The Opinion also more specifically reviews how circumstantial proof of constructive notice can be particularly challenging with indoor falls on water since "[u]nlike produce which may change in composition or color as it remains on a floor surface for an extended period, water evaporates with the passage of time."  The Opinion goes on to analyze the decisional precedent on constructive notice, which authority dates as far back as the 1950s and 1960s.

In response to the Defendant's motion for summary judgment based upon the lack of any actual or constructive notice of any allegedly dangerous condition on the bank lobby floor in the form of melted snow or water, the Court reviewed the matter in a light most favorable to the Plaintiff as required by the standard of review.

The Court noted that there was no dispute that the Plaintiff slipped and fell in the lobby.  Although the Plaintiff admittedly could not state how long the water was located on the lobby floor, she did offer evidence of the official weather reports confirming that snow and freezing rain fell over the 24 hours leading up to the event.  Evidence was also produced by the Plaintiff that the Bank's representatives admitted that they were aware that wet floors caused customer falls and that the bank placed "Caution" signs and extra carpet mats in the lobby when needed.

Based on this evidence, the Plaintiff contended that it was a jury question to determine whether, during the winter months in Northeastern Pennsylvania, a business owner should have appreciated and remedied the risk to business invitees when wet weather outside was likely to be tracked inside and onto a tile floor, which conditions the business owner should have also known would likely cause a hazardous condition to business invitees.

In his decision, Judge Nealon emphasized that the Plaintiff noticed, after her fall, that the water on the lobby floor was allegedly spread over a wide area all around the area of her fall.  Accepting this as true under the applicable standard of review and keeping in mind the highest duty of care owed by the business owner to business invitees, Judge Nealon found that there were triable issues of fact as to whether or not the bank had constructive notice of the water on the floor under the facts presented.

The Court also found that the testimony relating to the bank's safety practices, including putting out "Caution" signs in times of bad weather along with extra carpeting, also created genuine triable issues of fact on the breach of a duty of care issue sufficient to deny the Defendant's motion for summary judgment. 

Anyone desiring a copy of Judge Nealon's Opinion in the case of Filippova v. Community Bank and Trust Company may contact me at dancummins@comcast.net.

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