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Case Study

Summary Judgment Motion Based on Lack of Actual or Constructive Notice

August 01, 2010
Lisa M. Robinson

In a negligence action, plaintiff sued the owners of an duplex apartment building for injuries he sustained when an attic window broke while he was installing an air conditioner. Plaintiff sustained tendon injuries that required surgery to repair. Lisa M. Robinson brought a summary judgment motion based upon lack of actual or constructive notice and pointed out that the plaintiff testified at his deposition that he had used the windows in the attic on a daily basis and that they were fully functional. The plaintiff further testified he was completely surprised when the window pane broke the day of the incident. The court agreed with the defendants’ argument and granted the motion. The court noted that there was no question of fact to overcome the motion. Rather, the facts showed that there had been no complaints regarding the windows, and that both plaintiff and the defendants testified the windows were fully functional prior to the incident.