Wade Clark Mulcahy LLP

When someone trips and falls and becomes injured due to some sort of “defect” in a store, have you ever thought about what constitutes an adequate inspection of that area and if the store actually did enough on their end to prevent the injury? How often must a store inspect an area to make sure it is clear to escape liability?

Recently, in Sheva Arbit v. Costco Wholesale Corporation (Index No: 150925/19), the Supreme Court Appellate Division reversed an order from the Supreme Court in Richmond County, which had denied summary judgment. The plaintiff brought this action after she slipped and fell on food on the floor at the defendant’s store. Costco filed a motion for summary judgment to dismiss the complaint, but the Supreme Court of Richmond County denied the defendant’s motion.

On appeal, the Supreme Court Appellate Division reversed the order. In a slip and fall case, the defendant moving for summary judgment has the burden of showing 1) they neither created the hazardous condition and 2) they did not have actual or constructive notice of the condition and a reasonable time to correct or warn about its existence. To meet its burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time of the fall. In this case, the incident occurred at approximately 4:00 p.m. The defendant submitted evidence through its daily inspection log that the area in question was last cleaned between 2:47 p.m. and 3:40 p.m., and at that time, no hazardous condition was found. The Costco employee testified that if any hazardous condition was observed, it would have been immediately cleaned. The court ruled that this inspection was sufficient to negate actual or constructive notice on behalf of the defendant. The Supreme Court of Richmond County should have granted the defendant’s motion for summary judgment.