Liability for falling objects in New York personal injury cases

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This case involving a falling moose head raises some interesting issues in personal injury law. To collect for her injuries the accident victim will have to prove the restaurant was negligent. The insurance company will invariably defend based upon a lack of notice. There is no negligence unless the personal injury attorney can prove Notice. In order to prove Notice the personal injury attorney will have to show the restaurant operators knew the object was potentially dangerous (called actual notice) or through reasonable inspection should have known the object might fall (called constructive notice). The premises owners (if they are a separate entity) will not be liable because they couldn’t control how objects were hung in the restaurant.
If the restaurant operators are not willing to admit they knew the object was a danger for falling before it fell then the only way to prove actual notice is to get testimony that someone warned the operators of the restaurant.
Proving constructive notice would be possible if the personal injury attorney could show the object had fallen before or was hanging precariously for a sufficient period of time before it fell so the operators should have noticed it and fixed it.
There are two ways to avoid proving notice. First, that the operators created the dangerous condition (for example used a simple picture frame hook which was not designed to hold the weight of the object). Or lastly, a legal concept called res ipsa loquitor. This concept allows for an inference of negligence even if the personal injury lawyer cannot prove exactly how the act happened. The requirements for res ipsa loquitor is that the action doesn’t generally happen in the absence of negligence. The classic example is a barrel falling out of a window. The defendant had exclusive control over the object. Plaintiff cannot be a factor in causing the event.
From the facts presented in the article it appears the plaintiff would be entitled to utilize res ipsa loquitor.