The Second Judicial Department for the Supreme Court of the State of New York, Appellate Division, recently addressed the question of whether the landing to enter a building—in this instance a restaurant—can constitute a dangerous condition if a plaintiff slips and falls when it is raining at the time of the accident. See Christopher Derosa v. Zaliv, LLC, ___ A.D.3d ___, 2020 N.Y. Slip. Op. 07862 (2d Dept. 2020). Simply, if the only alleged cause for the fall presented by a plaintiff was a slippery condition upon the entrance to a building caused by falling precipitation, the existence of dangerous condition cannot be established.
In Derosa, the plaintiff allegedly sustained personal injuries when he was lawfully upon the premises of a TGI Friday’s restaurant in Brooklyn, New York, operated by the defendants. The subject accident occurred when the plaintiff slipped on the landing of an exterior staircase leading to the entrance of the restaurant, allegedly from the negligent ownership and maintenance of the staircase on the premises.
The defendants moved for Summary Judgment, arguing that the plaintiff failed to identify a dangerous condition upon the premises occupied by the defendants thereby causing his sustained injuries; however, the trial court denied the defendants’ Motions for Summary Judgment finding that questions of fact as to the dangerous condition remained. Ultimately, the Second Judicial Department reversed the trial court’s order and granted the defendants’ Motions for Summary Judgement, dismissing plaintiff’s claims against the defendants.
The Second Judicial Department found that “the mere fact that an outdoor walkway or stairway becomes wet from precipitation is insufficient to establish the existence of a dangerous condition.” The Court found that defendants properly established that the sole cause of plaintiff’s fall was the ongoing precipitation that made the subject staircase at the entrance wet. Additionally, plaintiff admitted during his deposition that the rain, which was still falling at the time of his accident, caused the area where he fell to become wet; specifically, the rain caused the surface of the stairway to become wet, which led him to slip and sustain his injuries. The Second Judicial Department also rejected plaintiff’s attempt to create an issue of fact through his engineering expert; the report failed to alter the cause of plaintiff’s fall—the rain—based upon the plaintiff’s candid deposition testimony.
From a defense perspective, Derosa teaches us that where weather may factor into a plaintiff’s injuries it is important to evaluate whether the weather is the sole cause of the alleged injury or just another contributing factor to the accident dynamic. When it is the sole cause, given the holding in Derosa, it should be argued that a wet surface from rain does not create a dangerous condition in and of itself. As the ongoing rain was neither created nor caused by the defendants in Derosa, a court cannot have reasonably deduced that a dangerous condition existed; simply put, a plaintiff who slips and falls from the rain alone has insufficient evidence to maintain a premises liability action. Therefore, there is a strong likelihood of defendants, in similar matters, being successful with a Motion for Summary Judgment.