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Plaintiff seeks to use the Noseworthy doctrine in order to lower his burden of proof in a slip and fall case – Dolnick v. Borders Group, Inc., 2009 NY Slip Op 30538(U) (N.Y. Sup. Ct. 3/9/2009)


Plaintiff Dolnick filed a personal injury lawsuit against defendant bookstore Borders Group for an injury suffered by his father at the Borders location in Columbus Circle. The defendant moved for summary judgement to dismiss the case because the victim had passed away, and the plaintiff had not witnessed the accident. The court had to determine if the defendant met its burden of showing that the plaintiff’s claim has no merit.

In May 2004, plaintiff’s father fell in the defendant’s bookstore, and as a result suffered an open ankle fracture. The following year, in March 2005, the injured victim died from an unrelated cause. The plaintiff, who is the administrator of the estate of his deceased father, initiated the personal injury lawsuit against defendant Borders after his father’s death. The defendant filed a motion for summary judgement dismissing the claim.

When a defendant files a motion for summary judgement dismissing a claim, the defendant has the burden of presenting a prima facie case that it did not cause the hazard that resulted in the victim’s injury and that it did not have real or constructive knowledge of the hazardous condition. Once the defendant establishes a prima facie case, the burden shifts to the plaintiff.

The basis for the defendant’s position is that the plaintiff did not witness the accident. Therefore, he cannot prove that the accident was caused by the negligence of the defendant. The defendant contends that the plaintiff’s case is based solely on hearsay. The plaintiff testified that he was not present at the bookstore when the victim fell. He learned of the accident after the fact from his brother, who called to tell him that their father had fallen at the bookstore, had broken his ankle, and was having surgery. According to the plaintiff, his father told him that after an ambulance was called, the bookstore staff put out mats to ensure that no one else would slip. As to the cause of the fall, the plaintiff was told by his father that the floor was wet because it had just started to rain. The plaintiff does not know if anyone witnessed the victim slip and fall. The plaintiff reported that at the time of the accident, the victim was in good health and the only medication he was taking was a blood thinner.

The bookstore general manager also presented testimony. However, it was of little value since he did not begin working at the Columbus Circle location until several months after the accident. He could not testify to anything from his own personal knowledge. However, his description of the accident, based on information that he received from another person is different from the plaintiff’s description of the accident. The manager stated that the victim stepped over the stanchions to get in line or to get in front of someone, and he tripped while trying to do so. The general manager reported that the victim made a comment that he felt dizzy because he did not take his medication.
The plaintiff responded to defendant’s argument that his evidence was hearsay, by arguing that the defendant’s evidence is also hearsay and not based on firsthand information. In addition, the plaintiff argued that he should be held to the reduced standard of proof afforded by the Noseworthy doctrine. Under the Noseworthy doctrine, a plaintiff in a wrongful death action is not held to as high a burden of proof as is typically required because the deceased plaintiff is not available to tell his or her version of the relevant events. However, the court points out that plaintiff’s reliance on Noseworthy is misplaced because this case is not a wrongful death case. Thus, the plaintiff’s burden of proof is the standard burden as in any slip and fall case. This means that the plaintiff must be able to demonstrate that the defendant either created the dangerous condition or had actual or constructive notice of it and failed to cure it. For notice to be constructive, the defect must be visible and apparent, and it must have existed for a sufficient length of time prior to the accident to allow for the defendant to discover and remedy it.

In denying the defendant’s motion for summary judgement, the court concluded that the testimony of the defendant was not compelling and that it raised more questions than answers. The court also questioned whether the defendant fully complied with CPLR 3101 that requires the full disclosure of videotape. Because the court found that the defendant had not met its burden of making a prima facie showing of entitlement to summary judgement, the burden never shifted to the plaintiff. Thus, the court did not have to consider the plaintiff’s submissions in opposition to summary judgement dismissal.

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