PMT Delivers a Win – “I Don’t Know”: Exposing Meritless Lawsuit with Plaintiff’s Own Words

By Thomas M. Bona.

Court: Supreme Court of the State of New York, Rockland County
Judge: Hon. Rolf Thorsen
Case Type: Slip and Fall
Caption: Martinez v. Inserra Supermarkets, Inc

Index No.: 36398/13
Decision Date: November 1, 2018
Decision: Summary Judgment Affirmed October 28, 2020

In premises liability cases, it is fundamental that a property owner can only be responsible if he has had notice of a condition and a sufficient time to remedy it. A plaintiff must be able to identify what they slipped on. In cases involving snow and ice, it is easy for the plaintiff to know what they slipped on. Other times, when the plaintiff falls, he is not sure.  Pinning the plaintiff’s testimony down on what he slipped on is critical because without identifying what it was, the courts have steadfastly found that it is merely speculation.

A recent case in which PMT won summary judgment shows how we used the plaintiff’s testimony to successfully defeat her claim. In Martinez v. Inserra Supermarkets Inc., the plaintiff fell on a liquid that was on the sidewalk outside the ShopRite of Stony Point. Before the accident, the plaintiff had been in the store grocery shopping, paid for groceries, and exited the store when the accident occurred. The plaintiff claimed that an unidentified customer had reentered the store carrying a Tide detergent bottle before her accident and requested a new bottle because the first bottle had broken and spilled outside. About five minutes later, the plaintiff exited the store, pushing her grocery cart. Her accident occurred when she slipped and fell on the liquid on the sidewalk outside the exit door. The plaintiff testified that she never saw the liquid before the accident, and she did not know how long the liquid was there before her accident, and she was unable to identify what type of liquid was involved in her fall. Her husband testified that he could not identify the liquid other than to say it was not water. There were no other witnesses to the accident. A surveillance video taken inside the store showed that the unidentified customer reentered the store carrying a Tide detergent bottle, and five minutes later, the plaintiff left the store.

PMT moved for summary judgment, arguing that the plaintiff could not identify what caused her to fall, and therefore there was no notice. Moreover, even if there were notice, the five-minute period between the alleged creation of the condition and the accident was insufficient for ShopRite to remedy the condition. The lower court granted our motion and the plaintiff appealed.

The Appellate Division affirmed the dismissal of the plaintiffs’ case. The Second Department found that ShopRite neither created the alleged hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy the condition. The Appellate Division also concluded that even if ShopRite had notice of the spill, the evidence demonstrated that ShopRite did not have a reasonable time to remedy the condition prior to the accident. Critically, by highlighting the plaintiff’s testimony that she did not know what she had slipped on and had not seen it before her fall, we were able to dismiss this case successfully. At PMT, we always look for ways to save our clients’ money by dismissing meritless lawsuits.

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Should you have any questions, please call our office at (914) 703-6300 or contact:

Jeffrey T. Miller, Executive Partner
jmiller@pmtlawfirm.com

Thomas M. Bona, Partner
tbona@pmtlawfirm.com