I was shopping at the mall. I slipped and fell in the mall and injured my leg. Do I have a case?

The short answer is: it depends. To successfully recover compensation for your injuries under New York law, your case must prove two major legal elements: notice of the hazard and identifying the correct responsible party. Because malls involve complex webs of property owners, store tenants, and third-party contractors, establishing liability is rarely straightforward.

The Requirement of “Notice”

Under New York law, property owners and occupiers are not automatically responsible for every accident on their premises. To establish a prima facie case of negligence, a plaintiff must demonstrate that the defendant either created the dangerous condition, or had actual or constructive notice of it.

  • Creation of the Hazard. The defendant directly caused the unsafe condition (e.g., a janitor leaves a floor wet without putting up a warning sign).
  • Actual Notice: The defendant was directly notified of the hazard but failed to act within a reasonable timeframe.
  • Constructive Notice. The defect was visible and apparent, and existed for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it. Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986).

If a shopper spills a drink and you slip on it five seconds later, the mall owner cannot be held liable under constructive notice because they did not have a reasonable opportunity to discover and clean it up.

The Core Challenge: Who Do You Sue?

Under New York’s general rule, premises liability goes hand-in-hand with possession and control of the space.

Slipping Inside a Specific Store

If you slipped and fell inside in the mall in an individual store (such as an anchor department store or a boutique), the tenant renting that space is usually responsible for keeping it safe.

Because of these complex contracts, you often cannot know which party ultimately holds the legal and financial responsibility until your attorney obtains the lease agreements during the “discovery” phase of litigation.

Slipping in a Common Area

If you slipped and fell in the mall common area—such as a central hallway, escalator, food court, or parking lot—liability shifts back to the landlord.

  • Retained Control. The Second Department (Brooklyn, Queens and Staten Island) has held that “control,” refers to an out-of-possession landlord’s ability to remedy dangerous conditions. A landlord must exercise reasonable care to keep common areas safe for tenants and foreseeable visitors. Liability may be imposed on such a landlord for injuries resulting from the condition of the demised premises only if a duty to keep the premises reasonably safe is imposed on the landlord by statute or assumed by the landlord by contract or a course of conduct. Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 929 NYS2d 620 (2d Dept 2011).
  • Third-Party Contractors. Malls frequently hire independent property management companies, security firms, or professional janitorial services. While a property owner is generally not liable for the negligence of an independent contractor, New York recognizes a non-delegable duty exception for properties open to the public. Backiel v. Citibank, N.A., 299 A.D.2d 40 (2d Dept 2002). The owner’s duty to provide safe common areas and safe means of ingress/egress cannot be delegated away to a third-party cleaning company. Both the mall owner and the negligent contractor may be held liable.

Related Legal Resources. If you were injured on a public sidewalk, in an apartment complex, or on public property rather than inside a commercial mall, different legal rules and deadlines apply. For a deep dive into notice requirements, multi-family dwelling rules, and municipal deadlines, visit our Staten Island Trip and Fall Accident Guide.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.