OCTOBER 10, 2016:
Being a lawyer in Miami that helps those injured in slip and fall or trip and fall accidents, proving that the defendant had notice of a dangerous condition is tantamount to a successful outcome. In order to prove the necessary elements of a premises liability case, the Plaintiff attorney must show that the owner of the property knew or should have known that a dangerous substance was present and would cause an accident. While the ultimate burden of proof is on the party injured, a defendant’s goal is to present evidence establishing that no material fact exists with respect to notice, hence increasing the likelihood of a dismissal.
Recently, the Second District Court of Appeal (“DCA”) heard argument surrounding a Trial Court’s dismissal of a slip and fall case in Lee County, Florida. In “McNabb v. Taylor Elevator Corp., et al.”, the Plaintiff slipped and had fallen due to an oil leak near the elevator within a condominium hallway. During discovery, evidence revealed that at some point prior to the fall the elevator’s machinery had been leaking oil. However, the defense presented evidence that three days prior to the incident inspectors had determined that the machinery had not been leaking, thus forming the basis of the Motion for Summary Judgment filed.
While a Motion for Summary Judgment is an effective tool for the defense, the burden is entirely on the defendant when proceeding in such a fashion. As opined by the “McNabb” Court, “the burden is on the moving party to come forward with competent evidence to demonstrate the nonexistence of a material issue of fact.” Furthermore, “once a movant meets his or her initial burden, the burden shifts to the opposing party to come forward with evidence to the contrary.”
In opposition to the Motion, the Personal Injury Lawyer for the plaintiff hired an engineering expert to testify that the oil had been leaking for a period of up to eighteen days before the fall. Consequently, the expert signed an affidavit further justifying and confirming his opinion. Nevertheless, the Trial Court completely discounted the expert affidavit and granted the Motion, which effectively dismissed the action. On appeal, the Second DCA held that the Trial Court incorrectly failed to consider the affidavit as evidence for the Plaintiff. Therefore, the DCA reversed the dismissal due to the conflicting evidence presented by the trial attorney for the injured plaintiff.
Despite the fact that the end result was favorable for the injured party, it always behooves an accident attorney to uncover as much evidence establishing notice of a dangerous condition as possible. The last thing a person that sustained serious injury needs is for his or her case to be dismissed due to insufficient evidence.
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