The Law

Failed Prove Not Negligent by Ron Davis An injury that a person suffers is not an “act of God” if humans contribute to it in any way. Based on that premise, the owners of a shopping center in Massapequa, NY, must face the consequences of an accident that a shopper suffered while visiting there. The shopping center is Sunrise Mall, and that accident occurred when the shopper slipped and fell on a plastic mat at a tenant’s leased premises. Her fall resulted in personal injuries. The shopper claimed that at the time of her fall, the carpeting in the store was wet. She added that several hours prior to the accident, she was aware that flooding from substantial rain had occurred in the vicinity of the shopping center. The center’s manager also noted that there was flooding in the mall area due to heavy rain several hours prior to the accident. He also said that he did not know whether water from the flooding entered the store or what steps were taken to deal with invasive water. But a manager of the tenant store where the accident occurred stated that he was not aware that water from the flooding had entered the premises where he worked. Nor, he added, was he aware of steps, if any, that the center’s management takes to address conditions of flooding. The center’s owners argued that they did not create the conditions that allegedly led to the woman’s fall. Nor, they added, did they have actual notice of flooding conditions within the confines of the property. In a slip-and-fall situation involving the owners of property and a visitor to that property, the owners have the “initial burden” of establishing that they did not created the dangerous condition that caused the fall. Moreover, the owners must show that they had no “actual or constructive” notice of the condition for a sufficient length of time to discover and remedy any problems. In any case, the center’s owners argued, the water conditions at the tenant’s store were caused by an act of God, over which they had no control. A New York court ruled in favor of the injured woman based on its finding that the center’s owners failed to establish that her fall did not arise from the owners’ negligence. Moreover, the court decided that even though the lease provided that the tenant must “defend and save landlord harmless…from all injury, loss, claims, or damage,” such claims do not extend to those arising from “any fault or negligence by the landlord, its agents, servants, and contractors.” An appellate court agreed with the lower court, concluding, “As the Sunrise Mall defendants failed to establish that the shopper’s injury did not arise from their own negligence, they failed to establish their prima facie entitlement to judgment as a matter of law with regard to their cross claim for contractual indemnification. Similarly, they failed to establish their prima facie entitlement to judgment as a matter of law on their cross claim…because they failed to satisfy their prima facie burden of establishing that they were not negligent.” (Sawicki v. GameStop Corp., 2013 WL 2233969 [N.Y.A.D. 2 Dept.])