Anne Sisia v. Viscount Wines & Liquors et. al., Supreme Court of the State of New York, County of Dutchess, Index No. 1785/2014
Rawle & Henderson LLP recently obtained a summary judgment in the personal injury case Anne Sisia v. Viscount Wines & Liquors et. al.
The case resulted from an accident on December 19, 2013, when plaintiff fell in the parking lot area of defendant Viscount Wines & Liquors in Wappingers Falls, New York, around noon after she had left the liquor store. Plaintiff suffered a tri-malleolar fracture of her right ankle, which required surgery. Rawle & Henderson LLP represented a snow removal company that had a contract to remove snow in front of the liquor store.
Rawle & Henderson LLP argued that pursuant to the contract, our client performed snow and ice removal only upon request of the co-defendant property owner, Viscount Wines & Liquors. There was no evidence indicating a request for snow and ice removal and the weather was above freezing on the day of accident.
The weather reports confirmed that there was no precipitation, and that temperatures at the time of the accident were above freezing. Therefore, ice would not have been present. Witnesses testified that there was no precipitation on the date of the accident. Without the snow removal contract being triggered, our client—the snow removal company—did not owe plaintiff a duty of care. Our client had plowed the Viscount parking lot on December 17, 2013, and salted the lot on December 18. They did not plow or salt the lot on the day of the accident.
Plaintiff normally used a walker, but used a shopping cart as a substitute for her walker when she entered and left the store on December 19. In deposition testimony, under cross-examination plaintiff admitted that she could not identify any defect or condition that caused her to fall. Although she testified she subsequently observed slush in the vicinity of where she fell, she said that she did not know what caused her to fall.
In addition, a Viscount Wines & Liquors employee testified that after being informed of the accident, she went to the area where plaintiff fell and observed that there was no debris or precipitation in the form of snow, ice or water. A second Viscount employee testified that there was no ice or slush in the parking lot when she went out to attend to plaintiff.
Rawle & Henderson LLP moved for summary judgment, arguing that our client had prima facie entitlement based on evidence that plaintiff did not know what caused her to fall, that our client did not create a condition that caused plaintiff to fall, and that they did not have actual or constructive notice of a condition in a reasonably sufficient amount of time to remedy it. The motion was granted and the case was dismissed as to all defendants.