Week of June 1-3

In Taub v. JMDH Real Estate, et al., the Second Department addressed a difficult issue for defendants: the dreaded “last known inspection.” The court affirmed the trial court’s denial of summary judgment to defendants in a personal injury action where cases of cooking oil in defendants’ store fell off a wooden pallet being moved with a hi-lo device onto plaintiff’s head. The court found issues of fact as to whether defendants created a foreseeable risk of injury by moving a heavy pallet during business hours and by failing to warn plaintiff and other shoppers to stay clear of the area. While defendants presented the testimony of a logistics employee who testified as to their pallet inspections and packing methods, the court found that he “lacked personal knowledge as to when this specific pallet was last inspected, whether pallets were inspected for defects other than missing wooden slats, and the extent to which the third-party defendants received prior complaints about defective pallets.”

The “last known inspection” is a critical component of a notice defense that is often pounced on by plaintiff’s counsels. It can be hard to support with evidence and your insured may not have documentation to show exactly when the last known inspection was done, by whom, and what the result was. Generally, the courts are very skeptical when defendants rely on a general custom and practice in an attempt to prove the “last known inspection.” A general custom and practice is not enough. As a best practice during discovery, every effort should be made to pin down every witness and document available that supports our position with respect to the last known inspection. Also, courts will not be swayed by generalized knowledge that does not resolve questions of fact concerning the particular condition alleged to be hazardous.

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