Court Determines If Owner Was on Notice or Had Res Ipsa Loquitur Liability
Angela Rosario was injured when her foot went through the surface of a back deck of an apartment, creating a hole in the deck through which she fell. Peter Cao and others, who owned the building, had purchased the property approximately 51 days before the accident.
Litigation ensued. Supreme Court granted Cao’s motion for summary judgment dismissing Rosario’s complaint. Rosario appealed.
Cao failed to establish entitlement to summary judgment, as he did not show that he lacked actual or constructive notice of a defect in the deck. Cao testified that the deck was inspected before purchasing the property and he also obtained the services of an unidentified inspector. However, Cao failed to produce the inspection report or any evidence of its contents, nor did he establish that the defect in the deck could not have been discovered upon a diligent inspection. In light of the failure to show lack of actual or constructive notice, it was of no moment that Cao did not create the defective condition of the deck.
Even if Cao met the prima facie burden, Rosario raised triable issues of fact on constructive notice. Rosario retained SJ Carroll, Inc. to perform a search with the Department of Buildings, which revealed that there was no Certificate of Occupancy for the property or the outdoor rear deck. Rosario’s expert engineer opined that the lack of a certificate of occupancy for the property, including the deck, should have put Cao on notice that the deck was not compliant with applicable building codes and that an inspection would have uncovered weakened plywood under the deck’s tile surface.
Rosario also raised an issue of fact regarding the doctrine of res ipsa loquitur, under which notice is inferred. The doctrine of res ipsa loquitur allows an inference of negligence to be drawn where (1) the event is of a type that does not normally occur in the absence of negligence, (2) it was caused by an instrumentality within the exclusive control of the defendant, and (3) plaintiff’s actions did not contribute in any way to the occurrence .
The first and third elements were established here because a deck being put to its regular and intended use does not ordinarily collapse in the absence of negligence, and there was no claim that any contributory negligence by Rosario caused the collapse. The second element of exclusive control may be established to the extent that Rosario’s claim was based on Cao’s failure to maintain the deck since the acquisition of the property, rather than on the illegal construction of the deck at some earlier date.
Supreme Court’s order granting Cao’s motion for summary judgment dismissing Rosario’s complaint was reversed.