Wade Clark Mulcahy LLP

In Bristol v. Biser, Plaintiff and her family were forced to evacuate their apartment building due to a fire allegedly caused by the building superintendent roasting a pig in the basement.  Plaintiff and her family left the apartment building, waited in their car and then moved the car.  While walking back to the apartment building, she slipped and fell on an icy condition in front of a house.  Bristol v. Biser, No. 2020–03287, 2024 WL 4139211 (2d Dep’t Sept. 11, 2024).

Plaintiff sued Lenox180, LLC, the owners of her apartment building, and the owners of the house, alleging, inter alia, claims of negligence and negligent infliction of emotional distress.  Summary judgment was granted in favor of the defendants.  On appeal, the Second Department upheld the trial court’s findings as to both causation and notice.

As for causation, when moving for summary judgment in a negligence action, the defendant has “the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident.”  Id., at *2 (citations omitted).  While proximate cause is generally an issue of fact for a jury, it may be determined as a matter of law where “a defendant's negligence merely created the opportunity for, but did not cause, the event that resulted in harm.”  Id. (citations omitted). 

The Court found the roasting of the pig in the basement of the apartment building was not the proximate cause of the fall, as “the risk created by the original [alleged] negligence was not the risk that materialized into harm.”  Id. (citation omitted).  Here, when Plaintiff fell, she had already left the apartment building, waited in her car, moved her car and was walking back to the apartment.  Accordingly, Lenox180’s negligence had ceased at that point.  With respect to the slip and fall, the Court agreed with the trial court that the homeowners sufficiently established they did not create the condition nor had any constructive notice of it.  Id.

This decision serves as a reminder to gather as much evidence as possible in discovery, use it to your advantage and be aggressive in filing motions for summary judgment when the evidence so warrants.