Recently in Slip And Falls Category

October 14, 2014

A Closer Look at a Slip and Fall Action

Slip and fall cases are fairly common in the personal injury litigation world. That does not make them simple or easy, however. A recent slip and fall decision by the Appellate Division, Second Department, can help to detail what it takes to litigate- and win - a slip and fall action.

laundry.jpgIn Francis v. Super Clean Laundromat Inc. the plaintiff, Cherry Francis, alleged that she tripped and fell "over a curled up mat on the floor of a Laundromat operated by the defendants Super Clean Laundromat, Inc., and Guy R. Corporation." Ms. Francis lost in the lower court. She appealed this decision to the Second Department.

Classically, a slip and fall case is exactly what it sounds like: the plaintiff injured him or herself by slipping on some sort of defect or dangerous condition, which was owned or maintained by the defendant. Often at issue in such cases is the cause of that defect. Generally, if the defendant was the actual cause of a dangerous condition, he or she will be held liable. For instance: the defendant spilled liquid on the floor of his store - if someone slips, the defendant will most likely be found liable. In many cases, as in Francis, the issue is not as clean cut. Cases such as Francis illustrate situations in which the defendant did not have actual knowledge of the defect, but rather only should have known about it.

Ms. Francis lost in the lower court because she was, per the court, unable to show that the defendants had either actual or constructive notice of the hazardous condition - in this case, the rolled up mat. So it is undisputed that the defendants, the Laundromat and its owner, did not actually roll the mat up themselves, or place it in a dangerous spot. However, a plaintiff can still win if she can show that the defendants knew about the condition and did nothing (actual notice), or would have known about it if they behaved in a "reasonable" way (constructive notice).

Ms. Francis won on appeal for several reasons. Super Clean attempted to show lack of notice by introducing an affidavit by the general manager stating that he did not know about the mat. However, as the court points out, this affidavit should not have been considered at all, since this manager's identity was not disclosed to the plaintiff during the discovery process. However, the court also found that even if that affidavit had been allowed, the defendants would still have lost. This is a key point in a case like this: the defendants never told the court when the last cleaning or inspection of the area containing the mat occurred.

Let's review that point in a bit more detail. "Constructive notice" means that the defendant should have known about the dangerous condition. If the area they owned or controlled was being cleaned and/or inspected regularly, as any area open to the public should be, the defect would have been discovered and thus could have been remedied. If the defendant had been able to show that they regularly looked over that area and still did not find the defect, they would have won. In that scenario, reasonable care would not have uncovered the defect, which was caused by someone else (perhaps another customer), and thus they should not have to pay.

Here, though, by not showing the court that they performed regular inspections, they were unable to show the level of reasonable care that we would expect a business owner to exhibit. This lack of reasonable care caused Ms. Francis' injury. As you can see, slip and falls are not as simple as they seem at first glance. If you believe that you have been the victim of a negligent owner or operator and were injured as a result, contact our firm - complex cases are our specialty.

Francis v Super Clean Laundromat, Inc., 2014 NY Slip Op 03650

October 10, 2014

What Constitutes a "Trivial" Defect in N.Y. Personal Injury Cases?

In May, the Appellate Division, Second Department clarifyied an issue of law that should be of interest to property owners. Put simply: when someone injures himself or herself on another's property, how liable is the property owner?

gravel.jpgThe case of Grundstrom v. Papadopoulos stemmed from an incident that occurred 2008. Plaintiff, Josephine Grundstrom, tripped and fell while on the premises of defendant Gregory Papadopoulos. At the time the property was being partially rented from Mr. Papadopoulos by co-defendant Delicato Chiropractic. Ms. Grunderson showed up that day for a chiropractic appointment, apparently her first at the facility. A sign on the front door informed her that the doctor's office was in the rear of the building. She dutifully walked where the sign directed her. There was no walkway, but rather a gravel area leading to a brick patio, past which was the building's rear door. Upon attempting to enter the patio, Ms. Grunderson slipped - the patio was deceptively elevated - and injured herself. She sued both the property owner and the chiropractic office. The facts make this a fairly classic "slip and fall" case, otherwise referred to as premises liability.

In the lower court, much of the fight was between the co-defendants, each of whom asserted that the other who was responsible for maintaining that area of the property. Delicato Chiropractic won that argument, with the court finding that this area was not being "used," in the legal sense, by them, and as such responsibility for the area fell on Mr. Papadopoulos.

Papadopoulos claimed that the defect, the slightly raised patio, was "trivial." Under the law, property owners are not liable for injuries resulting from mere "trivial" defects. Many lawsuits, this one included, hinge on the very question of what it or is not a trivial defect.

As the Second Department points out, there is no strict test that determines triviality of a defect. That is, one cannot point to a specific number or dimension. However, the burden of proving such falls on the defendant, because if a defect is found to be "trivial," the defendant wins as a matter of law. Again as pointed out by the court, all aspects of the defect need to be examined in deciding triviality, including "width, depth, elevation, irregularity, and appearance of the defect[.]"

The Court ruled against Papadopoulos' argument. The Court pointed out that he failed to provide any dimensions to the defect at all. So while there is no "magic number" that would prove triviality, as the party with the burden, it was incumbent on Papadopoulos to show that this particular defect was small and nearly insignificant. In many cases, this involves, at a minimum, providing some dimensions to the court so that it may make an informed judgment. Papadopoulos provided only photographs, and the court did not feel confident enough to rule that he had overcome his legal burden.

It is more difficult to prove triviality than it might seem at first. In this case, according to the lower court, the difference in height between the gravel area and the patio was a mere inch, but that was not small enough to make the defect a trivial one. After all, Ms. Grundstrom did manage to severely injure herself regardless of the "tiny" height differential. Perhaps with more substantial evidence Papadopoulos would have overcome his burden, but those are facts for a different case.

For more on this case, see the Supreme Court opinion here, and the Second Department opinion here.

February 5, 2014

Five Injured after Jersey City Escalator Abruptly Reverses Direction

Five people were injured in an escalator accident in January 2013 at the Exchange Place PATH station in Jersey City, New Jersey after an ascending escalator abruptly reversed its direction during rush hour. According to a Port Authority spokesman, the five people suffered non-life-threatening injuries that consisted mostly of bumps, scrapes and bruises. However, some of the injured people complained of neck and back pain, and three of them were taken to the hospital as a precaution.

The Port Authority of New York and New Jersey responded to the accident by closing one of the PATH station's entrances as maintenance crews repaired the malfunctioning escalator. Investigators speculated that the accident occurred as a result of damage from Hurricane Sandy. In a statement, the Port Authority said, "PATH officials are looking into the cause of today's escalator incident at Exchange Place, including whether Superstorm Sandy related effects played a role."

escalator.jpgBrian Lafond, 23, suffered cuts to his leg and wrists as a result of being on the malfunctioning escalator. He said, "My heart was racing. I was terrified. All of a sudden, the escalator suddenly changed direction. It didn't stop, it just started going right down and people screamed. I instantly jumped onto the side railing between the two escalators and I could see people piling on top of each other at the bottom."

Nick Lukish, 33, was on the escalator at the time of the incident and suffered cuts and bruises to his shins. He stated, "There was a stampede at the base of the escalator. People started to panic and yell and scream, and I saw some people jump over to the down side of the escalator, so I jumped."

Michael Nochimson was also on the escalator and held onto the side rail in panic as other passengers screamed. He said, "You see me basically on the rail. I jumped onto the rail and was holding on while the escalator slipped backwards and picked up momentum."

Carolyn Baxter, who witnessed the entire incident, said, "I saw people scrambling and there were also people in the dividers that crawled up onto the divider between the escalators. I was pretty scared because I didn't know what was going on."

Safety and escalator expert Patrick Carrajot said that people should hang on to the escalator's railing if an accident occurs, especially if the escalator reverses direction abruptly. He said, "The problem is when one person or two people fall. That's when you get the broken bones, or the scrapes, or whatever types of injuries you're going to get."

Website Resource: 5 Hurt In Escalator Accident At Jersey City PATH Station, CBS News, January 7, 2013

October 3, 2013

First Department Rules Defendant Failed to Meet Burden for Summary Judgment in Bronx Slip and Fall

Earlier this week the Supreme Court Appellate Division, First Department ruled that the defendant had not met its prima facie burden for an award of summary judgment in a Bronx slip and fall case. The fall occurred at the Bronx Zoo, where the plaintiff allegedly slipped on a patch of ice outside a restaurant within the park.

As the Court states in its ruling, to warrant summary judgment in a slip and fall on ice case, the defendant must "proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident." Here, the defendant offered testimony from a supervisor, who testified as to policies and procedures for dealing with icy conditions in place at the zoo. While the testimony that she provided would seem a basis for a reasonable effort to remove the hazardous condition, the Court ruled that this was not enough. As the supervisor had not visited the site after the storm and before the fall, she had no personal knowledge of the conditions present at the time of the fall. She also had no personal knowledge of the steps taken to alleviate a potentially hazardous condition in this particular instance. Simply testifying as the the zoo's procedures was insufficient to meet the burden for summary judgment.

It is interesting to note that even had the defendant met its prima facie burden, the First Department still would have reversed the finding of summary judgment on this appeal. The Court found that in response to the summary judgment motion, the plaintiff had raised triable issue of fact with respect to defendant's notice of the icy condition and the overall upkeep of the sidewalk, which could have prevented the condition from being corrected. With the reversal of summary judgment, the case will return to Bronx Supreme Court to be heard.

Rodriguez v Bronx Zoo Rest., Inc., 2013 NY Slip Op 06294

August 20, 2013

First Department Upholds Damages, Reduces Past Medical Expenses in New York Slip and Fall Case

On August 20, the Supreme Court Appellate Division, First Department upheld a jury verdict of over $700,000 in a New York slip and fall case. The defendants had appealed the amount of the damages. Although the Court did uphold the jury's award for past and future pain and suffering, it did reduce the award for past medical expenses from $60,000 to just under $47,000.

wet stairs.jpgThe case involved a slip and fall that injured a worker as he was carrying a box down a flight of stairs. The stairs, according to the plaintiff, were wet and slippery due to rain throughout the day. The plaintiff did admit that his supervisor had placed a mat down for the workers to wipe their feet, but the jury still found for the plaintiff, and awarded the damages noted above.

In New York, the scope of judicial review is laid out in CPLR section 5501. Specifically, 5501(c) details what may be reviewed by the Appellate Division. In order to modify a jury's money judgment, the Appellate Division must determine that the award was either excessive or inadequate. To make this determination, the Court must decide that the award "deviates materially from what would be reasonable compensation." The First Department notes in its decision that it accords deference to the trial court's ruling, as the court of first instance has the opportunity to view witness testimony in person, as well as observe the jury. Accordingly, the First Department was unwilling to say that the jury's award deviated materially from reasonable compensation.

As to past medical expenses, the Court found that the amount originally awarded did deviate from what was presented into evidence at the Supreme Court trial. Based upon the bills that the plaintiff presented, the Court lowered the expense damages. When compared to the overall verdict and results, though, the First Department ruling is still a nice victory for the plaintiff.

Pinto v Gormally, 2013 NY Slip Op 05662

June 19, 2013

N.Y. Slip & Fall Attorney Report: Second Department Upholds Summary Judgment for Plaintiff in Slip and Fall Case

An April order by the Appellate Division, Second Department upheld a Suffolk County Supreme Court's finding of summary judgment for the plaintiffs in a Long Island personal injury case. In February of 2007, the plaintiff, a Nassau County police officer, was responding to an alarm at the defendant's summer house. At the time that the officer was investigating the house, the premises were covered in snow from a recent snowfall because the defendants had not removed the snow themselves, nor had they outsourced the task during the off-season months. The house was unlit, and the plaintiff slipped and fell on the slick top step of the residence.

snowy stairs.jpgTo prevail in its summary judgment motion, the defendants would have had to show that they neither created the hazardous condition, nor did they have notice of the condition. Obviously the snowfall was not created by the defendants. Furthermore, if they had not been to the house that winter, as it appears from the record that they had not, they would have no actual notice of the condition. It seems logical, however, that the defendants would have had constructive notice of the condition, knowing that they had not hired anyone to clear away any winter snow. The Court ruled that the defense failed to meet it's prima facie burden for summary judgment, thus their motion was denied.

The Second Department upheld the Suffolk County Supreme Court's Order granting plaintiff's cross-motion for summary judgment. The Court found that the plaintiff was able to properly identify a statute or ordinance with which the defendant failed to comply, that plaintiff was injured, and that the defendant's negligence caused this injury. Having established this prima facie case as a right to summary judgment, the burden shifted to the defense to raise a triable issue of fact. The Court ruled that the defense did not raise such an issue. Because of these factors, the Suffolk County Supreme Court's finding of summary judgment for the plaintiff was upheld by the Appellate Division.

Patrick Byrne et al., Respondents, v. Thomas Nicosia et al., Appellants.

June 19, 2013

New York Personal Injury Report: Second Department Reverses Supreme Court's Decision to Set Aside Plaintiff's Verdict

In April, the Appellate Division, Second Department, reversed an Order of the Queens County Supreme Court setting aside a jury verdict in a personal injury action as a matter of law. The case involved a fall sustained by a firefighter during a training exercise in the defendant's building. As he was descending a staircase, the plaintiff slipped on debris. As he was falling, he attempted to stop his fall by grabbing the stairway's handrail. He failed in grabbing the handrail, and fell down the stairs, injuring himself in the process.

stairs.jpgDuring the Supreme Court trial, the plaintiff's expert contended that because the bannister was directly flush with the wall, with no space between, it was both defective and in violation of two sections of New York Administrative Code. The jury agreed with the plaintiff's version of the events, and found the defendant liable for the paintiff's injuries. The judge disagreed, however, and granted the defendant's motion to set aside the jury verdict as a matter of law.

For a court to rule in favor of setting aside a jury verdict, the judge must find that no valid logic would lead a rational person to reach the same conclusion that the jury reached after its deliberations. In essence, the court must find that, based on the evidence presented, the jury's findings are irrational. This is a difficult burden to overcome, because both sides have the opportunity to question potential jurors during voire dire. Therefore, the side moving to set aside the jury verdict must prove that this presumably rational jury made an irrational finding.

The Second Department disagreed with the trial court. It stated that the jury's finding was,in fact, one that a rational jury could have reached. The jury's finding of the defendant's liability constituted a fair interpretation of the evidence presented at trial. The Appellate Division remitted the matter to the lower court for a trial on damages.

Nocenzu Cusumano et al., Appellants, v. City of New York, Respondent.

April 21, 2013

White Plains Personal Injury Attorney Report: Appellate Division Allows Injured Father's Case Be Heard By Jury

In the recent case, Burgos v. Montemurro Enterprises, LLC, the First Department of the Appellate Division, New York State Supreme Court, upheld a Bronx trial level decision denying a personal injury defendant's motion for dismissal.

The Plaintiff Samuel Burgos was injured when he tripped and fell on uneven planks while walking up a wooden walkway in front of his apartment. In reviewing the record, the Appellate Court found that the deposition testimony of the plaintiff, plaintiff's son, owner of the property, and the building's superintendent, as well as photographs of the planks, all raised issues as to whether defendant had constructive notice of the defective condition (the uneven wooden planks).

Defendant's expert opined that the lighting was sufficient at the time of the accident based on an inspection performed nearly two years after the accident. However, the Court found that there was additional testimony at various depositions that precluded a finding that inadequate lighting of the area was not the cause of the accident. As a result, the Court affirmed the trial Court's decision allowing the case to move forward to trial.

If you or a loved one has been injured in a trip and fall accident, please contact Gallivan & Gallivan in order to protect your rights.


Burgos v Montemurro Enters. LLC, 2013 NY Slip Op 00554 (January 31, 2013).

January 15, 2013

First Department Affirms Summary Judgment for Defendant in Bronx Slip and Fall

In October 2012, the Supreme Court Appellate Division, First Department, affirmed an order granting summary judgment to the New York City Transit Authority in a matter involving a slip and fall at a subway station. In the case, Kinberg v. NYCTA, the plaintiff brought a lawsuit after she fell during a snow storm on an icy staircase leading away from the subway.

icy stair.jpgThe NYCTA moved for summary judgment after presenting evidence that at the time that the plaintiff fell, a storm was in progress. The Court ruled, based on precedent in Solazzo v. NYCTA, that a landowner's duty to rectify an unsafe condition does not take effect until a reasonable time after the storm has ended.

In the current case, the Transit Authority presented evidence that the snowstorm was in progress at the time of the plaintiff's fall. Although the plaintiff claimed otherwise, her only basis for this opposing contention was her own testimony. She presented no objective evidence that the storm had subsided. Accordingly, the duty of the Transit Authority to remedy the condition had not been triggered, and the Court affirmed the lower Court's dismissal of the case.

For the Court's decision, go here to the New York State Law Reporting Bureau.

October 2, 2012

Second Department Grants Summary Judgment for Defendant in Personal Injury Action

staircase.jpgThe Appellate Division, Second Department, reversed a Supreme Court Decision last month, and in doing so granted summary judgment for the defendant in a slip and fall personal injury action in Brooklyn. The plaintiff had fallen on a wet staircase in a property owned by the defendant. Initially, the Supreme Court denied summary judgment for the defendant, however the Second Department reversed last month.

In making its ruling, the Court relied upon an affidavit submitted by the defense, in which a licensed mechanical engineer testified that the landing did not constitute a "dangerous condition," even though the staircase was wet and had been finished with polyurethane. The Court found that the plaintiff did not raise a triable issue of fact, making the judgment a matter of law.

The New York Official Reports for the Second Department provides the Court's ruling here.

July 31, 2012

Second Department Grants Summary Judgment to City of Yonkers in Slip and Fall Case

On July 25th, the Appellate Division, Second Department, reversed an order by the Westchester Supreme Court and granted summary judgment for the defendant City of Yonkers in a slip and fall case.

The plaintiff had been injured after slipping on an icy patch on a city roadway. According to precedent and the Charter of the City of Yonkers, the city defendant is entitled to summary judgment if it can show that it had no actual written notice of the hazardous condition, and that this condition was not caused by an act of negligence on the part of the City. The court ruled that because of this, and because the city did not create the hazardous condition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Second Department found that the trial court should have awarded summary judgment to the City.

The decision can be found at 2012 WL 3024007 (N.Y.A.D. 2 Dept.)

March 31, 2012

Summary Judgment For New York City Reversed In Slip and Fall Accident Case

The Second Department recently reversed an initial summary judgment ruling in favor of the City of New York. According to the suit, the plaintiff slipped and fell on greasy steps inside a city sanitation garage. The Trial Court agreed with the City, in that it did not have notice of the grease on the steps, which created the hazardous condition.

stairs.jpgAs a matter of law in a case involving a slip and fall, if moving for summary judgment, the defendant has the initial burden of showing that it did not create the condition, nor did it have actual or constructive notice of the condition. In reversing the Trial Court's ruling, the Appellate Division noted that the City failed to meet its initial burden with respect to creation and notice.

The Court explained that given the location of the accident site, the defendant failed to establish, prima facie, that the greasy substance was not created by its employees. They further reasoned that reversal was appropriate because the defendant also failed to submit any evidence as to when the subject staircase was last cleaned or inspected, thereby failing to establish they did not have constructive notice of the alleged hazardous condition. Since the defendant failed to establish its initial burden for summary judgment, plaintiff's papers were not considered.

Amendola v. City of NY, 2011 NY Slip Op 08104 (2d Dept. 2011).

March 20, 2012

Summary Judgment In Favor Of Property Owner And CVS Reversed In Minor's Slip And Fall Case

On November 22, 2011, the New York State Appellate Division, Second Department reversed an order for summary judgment granted to joint defendants. The Trial Court had ruled in favor of the defendants finding that no issues of fact existed requiring a trial of the matter. The case involves injuries suffered by a minor child as a result of slip and fall accident outside the property. The girl slipped and fell on ice on the sidewalk outside of the property, which is leased to CVS. Although the defendant property owner had outsourced clean-up of the sidewalk to a 3rd party, the Appellate Court ruled that property owners owe a non-delegable duty to the public to maintain a reasonably safe premises. The Court concluded that the property owner "failed to eliminate all triable issues of fact as to whether the snow removal efforts of the company it hired for that purpose did not cause, create, or exacerbate the icy condition that resulted in the subject accident."

With respect to CVS, the Court stated that CVS failed to establish that it owed no duty to the plaintiff. Citing a common law duty to repair defective conditions, the Court reversed summary judgment in favor of CVS, asserting that it failed to establish that it did not have actual or constructive knowledge of the condition. Because CVS failed to meet this initial burden, the court ruled that summary judgment should have been denied as a matter of law.

Sarisohn v 341 Commack Rd., Inc., 2011 NY Slip Op 08579 [89 AD3d 1007] (2d Dept. 2011).

September 29, 2011

Slip And Fall Case Restored By New York Appellate Division, Second Department

In a recent Westchester County, NY personal injury, slip and fall lawsuit, the plaintiff nurse claimed that she had slipped on urine while assisting a handicapped teenager who attended school at the defendant Pines Bridge Program. The school was owned and operated by defendants, Putnam / Northern Westchester Board of Coop. Services, and the plaintiff was employed as a private nurse for the teenager.

The Trial Court awarded summary judgment to the defendants, and, on plaintiff's appeal, the New York State Appellate DIvision, Second Department reversed. The Appellate Court found that a "defendant moving for summary judgment in a slip and fall case has the burden of establishing, prima facie, that it neither created the alleged hazardous condition nor had actual or constructive notice of its existence."

According to the appellate decision, the defendants, in their motion for Summary Judgment, offered admissible evidence of general cleaning practices. However, the defendants failed to provide any evidence of specific cleaning or inspection on the day of plaintiff's fall, and thus failed to establish their entitlement to summary judgment.

Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ. Servs., 2011 NY Slip Op 05950 [86 AD3d 551] (2d Dept. 2011).

July 19, 2011

White Plains Personal Injury Attorney Report: Slip And Fall Case Will Be Decided By Jury

The New York State Appellate Division, First Department, determined that summary judgment was properly denied in a recent case involving a slip-and-fall accident. The Plaintiff, Sentina Brown, and a co-worker provided testimony to the effect that, at the time of the accident, Ms. Brown slipped in water, that no warning signs were in place, that it was not raining and no water was leaking from the ceiling, and that Defendant's employee was standing nearby with a mop and bucket.

Ms. Brown's co-worker further testified that he saw the management company's employee mop the lobby at around the time of night the accident occurred. The First Department held that this evidence presented triable issues as to whether the management company created the condition upon which Plaintiff slipped. Defendant's presentation of evidence about its general cleaning practices and the schedule of its employee was insufficient to overcome Plaintiff's arguments. The management company had taken the position that the employee did not mop the lobby until three hours after the accident.

If you or a loved one has been injured in a slip and fall accident, please contact the New York Personal Injury Attorneys at Gallivan & Gallivan.

Brown v. Simon Dev. Co., 83 AD3d 544 (2011 1st Dept.).