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Slip-and-Fall Suit Falls on its Face
by Ron Davis

Shoppers must sometimes assume at least some of the risk they run when they venture forth in foul weather.

How much risk depends, of course, on the circumstances. And at a store operated in Buffalo, NY, by Big Lots Stores, Inc., those circumstances did not favor a shopper who suffered injuries there when on a cold, rainy day she slipped and fell.

Prior to the accident, the shopper had driven to the property and parked her car in front of the Big Lots store. The parking lot, as well as the store, was at the time owned by South Ogden Associates, which leased the property to Big Lots.

The shopper then walked toward the store’s entrance. But as she neared the door, she apparently stepped on a wet or icy patch, causing her to lose her balance. As she later recalled the incident, “I slipped on a wet surface.” But she added that she didn’t know why she fell after losing her balance.

She sued Big Lots and the owners of the property, claiming they were liable for the injuries she suffered in the fall.

The Big Lots store manager later explained, however, that on the day of the incident, rain had fallen off and on and that the rainwater had turned to ice in the parking lot. But the manager failed to confirm that ice had formed in the entranceway to the store, nor that he suspected the formation of the nearly invisible “black ice.”

A New York court ruled in favor of Big Lots and the property owners. The woman appealed that ruling.

A New York appellate court agreed that neither Big Lots nor the property owners were at fault for the woman’s fall and subsequent injuries. Explained the judge, “Based on the evidence, [they] met their initial burden by establishing that they lacked either actual or constructive notice of any allegedly dangerous condition and that they did not create it…. Even assuming that the slippery, wet substance on which the women slipped and fell was in fact black ice, we conclude that [Big Lots and the property owners] established as a matter of law that any such ice ‘formed so close in time to the accident that they could not reasonably have been expected to notice and remedy the condition.’” (Wilkowski v. Big Lots Stores, Inc., 2009 WL 3791601 [N.Y.A.D. 4 Dept.])

Decision: November 2009
Published: December 2009



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