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June 3, 2015

Property Owners May Still Be Liable For Injuries Caused By "Open & Obvious" Condition

The New York Supreme Court, Appellate Division, Second Department affirmed a trial court order denying a school district defendant's motion for summary judgment after the plaintiff tripped over a pole vault box and sustained injuries.

In 2010, the plaintiff went to Longwood High School to watch her niece's softball game. While walking across a field at the high school with her daughter, she was on a paved part of the field and was chatting with her daughter, not looking down. She tripped over the pole vault box, fell, and sustained injuries. She then brought a personal injury lawsuit against Longwood Central School District.

In her affidavit, the plaintiff stated that she had never been to the school's field area before and was not familiar with it. She said she believed she was walking on a walkway at the time of the fall, but in reality, she was walking on the pole vault runway. She said that because she was talking with her daughter right before the trip, she wasn't looking down to see what the ground was like or if she was approaching any obstacles. The school district moved for summary judgment, arguing that the pole vault box would have been very obvious to the plaintiff had she exercised care and looked down at the ground while walking.

In slip-and-fall cases, the plaintiff must prove that a dangerous or defective condition existed at the time of the fall. This could be a puddle or a hole. The plaintiff then must prove that the defendant either created this defect or had notice of it.

However, if a defect is "open and obvious", then the defendant doesn't need to warn others about it. This is because obvious defects are not inherently dangerous because everyone is aware of them and knows to avoid them. Whether a defect is in fact open and obvious depends on the individual defect and all of the facts surrounding the circumstances of the fall. Usually, for an open and obvious defect to exist, a person, making reasonable use of his or her senses while walking about, would notice the defect.

Here, however, the plaintiff was distracted. New York law holds that open and obvious defects may become traps for the unwary when the defect is either hidden or the plaintiff is somehow distracted.

In order to establish that a defect was "open and obvious" in a motion for summary judgment, the defendant must show that the defect was not inherently dangerous and was easily observable by those utilizing reasonable use of their senses. This can be rebutted by the plaintiff if the plaintiff shows that the plaintiff was distracted or the defect was obscured at the time of the fall.

Here, summary judgment was not proper as the plaintiff raised a genuine material dispute as to whether the defect was a trap. The defendant argued that the pole vault box was open and obvious - anyone walking on the runway would have seen it and known to step around it. In her opposition, the plaintiff argued that she believed she was walking on a walkway, not runway, she had no prior experience with this field, and she was distracted while speaking with her daughter. In support of her opposition, she submitted: photos of the pole vault box, her own affidavit, and an expert witness's affidavit that stated that the box was a dangerous pedestrian risk. The expert opined that the school district was required to either cover the box when it wasn't being used or at least place warning signs around it so that people would be warned of its presence and danger.

Even though the school district proved the pole vault box was open and obvious, the plaintiff showed there was a triable issue of fact regarding whether it was a trap. While the plaintiff's injury may be reduced by any comparative negligence, she successfully rebutted their motion for summary judgment. The trial court denied the motion, and the Second Department affirmed.

If you or a loved one has been the victim of a slip-and-fall accident, don't hesitate to contact the experience personal injury attorneys at Gallivan & Gallivan today to discuss your potential claims.

Oldham-Powers v. Longwood Cent. Sch. Dist., 123 AD3d 681 (2nd Dept. 2014).


June 1, 2015

Injury Law Report: Fall Case Dismissed By Second Department

The New York Supreme Court, Appellate Division, Second Department reversed a Trial Court's order denying the defendant's motion for summary judgment in a slip-and-fall bathroom case.

The plaintiff was a frequent visitor at the Yonkers Racing Association. She had used the bathroom at the facility many times in the past. On the day of the accident, she walked into the bathroom. While she was walking through the bathroom, she fell and injured herself. She notified a security officer on the property about her fall. The plaintiff told the security officer what had happened, and he typed up a report. The report said that when walking into the bathroom, the plaintiff looked into the mirror that was on the right wall by the entrance. The plaintiff said she was not paying attention and walked into a wall, which caused her fall.

The plaintiff filed a personal injury lawsuit against Yonkers Racing Corporation, which owns the racetrack in New York. In her complaint, she alleged that Yonkers Racing Corporation's negligence caused her slip-and-fall injuries. Yonkers responded, and the parties then began the discovery process.

During discovery, the parties gathered evidence and deposed witnesses. One piece of evidence that was gathered was the security officer's incident report. During plaintiff's deposition, she testified that she was extremely familiar with the facilities because she went there all of the time. In fact, she had been in that same bathroom countless number of times. She testified that upon entering, she didn't feel any slipperiness on the floor. She was looking forward as she walked in and slipped on something. She said there may have been a slippery substance underneath her because she felt damp after falling.

However, at another point in the deposition, she said that she never saw or felt a puddle underneath her and that she was unable to say whether the floor was wet at the time of the accident. In addition, when she was questioned about the lighting in the bathroom, she said she never noticed the lighting in the bathroom, including whether it was darker in there than usual.

In a slip-and-fall case, the plaintiff must identify the cause of the fall, prove that it is dangerous or defective, and prove that the property owner either caused the defect or had notice of it. If the plaintiff can't testify as to the cause of the fall, then it doesn't matter if a dangerous condition existed or if the race track was aware of it. The legal system does not allow plaintiffs to prevail on claims based on pure speculation. Testimony and evidence that prove by a preponderance of the evidence that a specific type of defect caused the fall are necessary to prevail.

Here, the plaintiff was unable to identify what caused her fall. At one point, she said she wasn't paying attention and walked into a wall. At another point, she insists she slipped and fell but that there was no puddle on the floor. At another point, she said she never saw a puddle but did land in something wet. In her complaint, the plaintiff alleged that water or a cleaning substance had caused her fall. However, she failed to properly identify what caused the fall based on her inconsistencies.

When a plaintiff is unable to identify the cause of her fall, then any argument that a defendant proximately caused the fall is peculation. The defendant is therefore entitled to summary judgment as a matter of law. The only way to survive such a motion is for the plaintiff to show some triable issue of fact in her opposition papers, which this plaintiff failed to do. As such, the Second Department held that the defendant's motion for summary judgment should have been granted and dismissed the case.

If you or a loved one has been involved in a slip-and-fall accident, contacted the expert slip-and-fall personal injury lawyers at Gallivan & Gallivan to start reviewing your claims today.

Trapani v. Yonkers Racing Corp., 124 AD3d 628 (2nd Dept. 2015).


May 31, 2015

Plaintiff Slip and Fall Case Dismissed for Testifying She Fell at Wrong Location

The New York Supreme Court, Appellate Division, Second Department dismissed a personal injury case against a building owner and Chinese restaurant when the plaintiff mistakenly sued the wrong entity.

While walking down the sidewalk on Fifth Avenue in Brooklyn, the plaintiff tripped over a cellar door and fell, sustaining injuries. She brought a personal injury suit against 197 Fifth Avenue, the building owner, and Sun Luck Restaurant, a Chinese restaurant that used a cellar at the building.

A civil case, including a slip and fall lawsuit, begins when the plaintiff files a complaint. The complaint must contain the plaintiff's specific claims, as well as some facts to support those claims. The defendant's answer contains counterclaims or defenses, as well as facts to support the counterclaims and defenses.

The parties then conduct discovery. During discovery, the parties conduct investigations, depositions of witnesses such as the plaintiff or expert witnesses, consult with witnesses and have the witnesses draft affidavits, comb through relevant documents, and draft and file any relevant motions.

One such motion is the motion for summary judgment. This motion can incorporate all of the information gathered during the discovery phase that is deemed admissible evidence. Though it can be made early on in the process, the moving party generally waits until gathering a substantial amount of discovery. This is because it is the burden of the moving party to proffer enough evidence in its motion to show that it is entitled to judgment as a matter of law.

If the defendant files the motion, the defendant is arguing a claim or the entire complaint must be dismissed because the defendant has proven that it is entitled to this outcome as a matter of law.

One such way the defendant may argue that it is entitled to judgment as a matter of law is by showing that the wrong defendant is being sued. Here, the two defendants made this exact argument.

During her deposition, the plaintiff testified that she tripped and fell at 140 Fifth Avenue, not 197 Fifth Avenue. Not only is this property not affiliated with either defendant in any way, but it is three blocks away and across the street. Throughout her deposition, she repeatedly stated 140 Fifth Avenue and even described the exact route, distance, and direction she walked in order to reach 140 Fifth Avenue. The plaintiff also recounted the name of the business at 140 Fifth Avenue, which was not Sun Luck Restaurant. Further, in her deposition, the plaintiff stated she was positive it was 140 Fifth Avenue because she retraced her walking route a few days later to confirm the address. When she was handing a photo of 140 Fifth Avenue, she confirmed this was the location and circled the cellar door for that property.

Despite her repeated and emphatic testimony, the plaintiff later filed an errata sheet. An errata sheet is a list of corrections a witness wishes to make to clarify or revise testimony given during a deposition. New York requires that in order for an errata sheet to be accepted by the court, the moving party must provide an adequate reason for any critical changes or corrections that would materially alter the testimony. This is because the court does not want to encourage parties to constantly revise any unfavorable testimony to support their claims.

In her errata sheet, the plaintiff corrected the address of her fall to 197 Fifth Avenue. She said that the reason for her correction was that an investigator for her lawyer had mistakenly gone to 140 Fifth Avenue and taken photographs, which caused her to believe the accident had occurred at that address when it really happened at 197 Fifth Avenue.

The trial court accepted this argument and refused to strike the errata sheet as requested by the parties. In addition, the trial court refused to grant the defendants' motions for summary judgment. The Second Department reversed and dismissed the case, holding that the plaintiff failed to proffer an adequate reason for her very serious testimony changes. Without those changes, the evidence showed the accident occurred at a different address.

If you or a loved one has been injured in a slip-and-fall accident, you need a skilled and experienced lawyer to advocate for your rights. Contact the accomplished New York personal injury lawyers at Gallivan & Gallivan today.

Horn v. 197 5th Ave. Corp., 123 AD3d 768 (2nd Dept. 2014).

May 25, 2015

New Trial Ordered By Second Department In Slip & Fall: Closing Arguments Found Prejudicial

The New York Supreme Court, Appellate Division, Second Department ordered a new trial in a slip-and-fall accident case after the plaintiff's lawyers made prejudicial comments in the closing argument before the jury.

The plaintiff slipped and fell while shopping at the defendant's supermarket. After falling and sustaining injuries, she was taken to the hospital. While in the emergency room, she was cared for by a triage nurse. According to medical records maintained by the triage nurse, she told the nurse that she had fallen outside of the grocery store, not inside.

The parties proceeded to trial. At trial, during opening statements, the defense spoke of his star witness, the triage nurse and her medical report. He shared with the jury that this nurse saw the plaintiff in the emergency room right after the accident and that the plaintiff told the nurse that the fall didn't occur at the supermarket.

However, during a later discussion with the parties outside the presence of the jury, the trial judge held that the statements in the medical records could not be admitted into evidence under the rules of evidence. Because the triage nurse was only going to testify about those statements, the court also precluded her from taking the stand.

At closing arguments, the plaintiff brought up how the nurse never testified. The plaintiff accused the defendant of lying in opening statements about the nurse. The plaintiff stated that the defendant had told the jury of the nurse's predicted testimony yet never delivered it. The plaintiff argued that if the defendant had lied about the nurse testifying, then the defendant must have lied about everything else. The plaintiff did not reveal that the nurse was precluded from testifying because of the evidentiary rule issue.

Because the court had instructed the defendant not to explain to the jury why the nurse had never testified, the defendant was unable to rebut these claims by the plaintiff during its closing argument.

The jury then found in favor of the plaintiff and awarded her $50,000 for past pain and suffering, $12,000 for past medical expenses, $140,000 for future pain and suffering, and $60,000 for future medical expenses.

The Second Department held that the trial judge had properly kept the medical records out of evidence. The medical records had to be "germane to the injured plaintiff's diagnosis and treatment" in order to be admitted, which they were not. In addition, the statements did not contradict any of the plaintiff's testimony like the defense had alluded to in its opening statement. Rather, the statements in the medical records appeared to support her story as to how the accident happened. Because the records could therefore not be used to impeach the plaintiff's credibility on the witness stand, they were not admissible at trial. Because the triage nurse's testimony was to be centered on these statements, her testimony was properly precluded.

However, an underlying tenant of the adversarial system we have in the U.S. is the idea of fundamental fairness in civil trials. There is open discovery. Plaintiffs and defendants are aware of each witness's testimony thanks to depositions and affidavits. The parties have access to evidence such as medical records. It is simply up to each party to use the witnesses' testimony and the evidence to craft the best story. Prejudicial statements before the jury regarding one party that cannot be rebutted are usually not allowed.

Here, while the trial court was proper in precluding the evidence and testimony, it was not proper in allowing the plaintiff to make the remarks about the nurse during its closing argument. First, these statements were untrue. The nurse hadn't failed to show up to testify, and the defendant didn't fail to call her as a witness. Rather, the witness had shown up and then was precluded by the court from testifying. Second, the statements were extremely inflammatory and prejudicial. They were likely to have unduly influenced the jury's decision and therefore hampered the fair trial process. As such, the Second Department ordered a new trial.

If you or a loved one has been the victim of a slip-and-fall accident, you need someone who can navigate the legal system and advocate on your behalf. Call the expert personal injury attorneys at Gallivan & Gallivan today to discuss your potential case.

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Nelson v. Bogopa Serv. Corp., 123 AD3d 780 (2nd Dept. 2014).


May 3, 2015

Defendant Landlord Failed to Establish It Was Not Responsible for Fall in Premises Liability Case

The New York Supreme Court, Appellate Division, Second Department reversed a trial court order that granted summary judgment to a defendant property owner in a slip-and-fall case that happened in a New York apartment.

In 2010, the victim, now deceased, was walking through his apartment when he tripped on the wood floor and fell. He sustained head injuries from his fall. It was not until 2013 that this case was brought for personal injuries by the victim's son, the executor of the estate.

In his deposition testimony, the son testified that he was at the victim's house at the time of the fall and saw the actual fall. He said he was walking behind his father on the wood floors. The flooring was warped and bowed and had been that way for some time. In fact, the father had been making ongoing complaints about this since 2001. The victim's foot went down in a spot where the flooring was warped, and he fell at an angle, hitting his head. The defense filed a motion for summary judgment.

In a premises liability case, the plaintiff has the burden to prove three things: (1) the cause of the injury, (2) that the cause of the injury was a dangerous condition or a defect, and (3) that the dangerous condition or defect was either caused by the defendant or the defendant had notice of its existence.

The defense first argued that the plaintiff failed to identify the cause of the injury without using speculation, and the Supreme Court accepted this argument. However, this was in error. The plaintiff's testimony about how the dip in the floor caused his father to trip was sufficient to identify the source of the fall.

The defense then argued it did not have notice of the alleged defect. However, the plaintiff's testimony that both he and his father had complained several times before the accident about the warped floors was sufficient evidence to rebut this argument.

Finally, the defense argued that the defect had not caused the alleged injury. A defendant is the proximate cause of an injury when his negligence has been proved by the plaintiff to have been a substantial factor in causing the injury. Here, the plaintiff would have to prove the landlord's failure to fix the warped and bowed flooring was a substantial factor in causing the victim's fall after tripping on the warped flooring.

There can be multiple proximate causes. The landlord's failure to fix the flooring could be one and the plaintiff texting and not looking where he's walking may be another. If only one proximate cause could possibly exist for the fall, and that proximate cause is the plaintiff's own doing, then summary judgment for the defendant is proper. However, if the plaintiff proffers with sufficient evidence that the defendant is a proximate cause of the fall, then the jury should decide who is at fault and assess any damages.

The landlord here failed to establish that it was not a proximate cause of the injuries. The medical records included in discovery showed the victim suffered a subdural hematoma after the fall. The defendant tried to argue that because (1) the victim had tried to sue the landlord three times, twice for unrelated trip-and-fall accidents and once for debris falling on his head and (2) the victim waited two months to see a doctor about the head trauma, the cause of the head injury came from a different accident.

However, in order to prove he is entitled to summary judgment as a matter of law, a defendant must submit expert medical evidence that the specific head trauma was not caused by the fall. The defendant here failed to include an expert medical witness's testimony. As such, the trial court's order granting the defense summary judgment motion was reversed.

If you or a loved one has suffered a devastating injury after a slip-and-fall, you have options. Contact the experienced personal injury lawyers at Gallivan & Gallivan today to review your potential claims.

Martino v. Patmar Props., Inc., 123 AD3d 890 (2nd Dept. 2014).

April 21, 2015

Accidental Fall Case Dismissed as Plaintiff Was Determined to Be the Cause of the Fall

The New York Supreme Court, Appellate Division, Second Department affirmed the trial court's order granting a defense motion for summary judgment, ruling that the plaintiff was the cause of his accidental fall in a slip-and-fall case.

A property in Suffolk County, New York had a staircase handrail that ended before the last step. The plaintiff was descending this staircase with a full pot weighing a whopping 35-40 pounds. The plaintiff fell down the stairs and injured himself. In a slip-and-fall action for negligence, the plaintiff alleged that the staircase handrail was defective, thus causing his fall.

stairs2.jpgDuring a deposition, however, the plaintiff said that he was unable to identify the exact cause of his fall. Depositions are interviews of plaintiffs, defendants, and other witnesses that are recorded as part of routine discovery in civil cases. The parties are able to ask the witness questions, and the witness's answers to these questions can be used by the court when evaluating a motion to dismiss, such as a motion for summary judgment.

A motion for summary judgment on all counts by the defense is essentially a motion to dismiss. The moving party is requesting that the judge find that there is no triable issue of fact for each count. Without a triable issue of fact, the count must be dismissed. In its motion for summary judgment, the movant must show that there is no genuine dispute of material fact that can only be decided by a jury.

The role of the jury in a civil case is to act as a fact finder. When facts are disputed, the jury evaluates the testimony and evidence presented at trial, assesses credibility, and tries to figure out what actually happened and who is responsible. If the facts are not disputed or if it is clear that the non-moving party is unable to show that there is a dispute that only a jury can settle, then summary judgment is proper.

When the defendant files a motion for summary judgment, he or she must argue that the plaintiff has failed to set forth a case for the jury. The defendant can rely on the plaintiff's complaint, as well as other evidence such as the depositions. Often times, the depositions will conflict with the complaint or will reveal additional information that may weaken the plaintiff's case.

Here, the plaintiff contradicted himself in a fatal manner. In his complaint, he listed the faulty staircase as the sole cause of his slip-and-fall accident. However, in his deposition, he did not blame the staircase. Rather, he said he did not know what caused his fall. In addition, he revealed in his deposition that at the time he was descending the staircase, both of his hands were occupied with carrying a very heavy pot. Thus it did not matter that the staircase was defective as he did not have any available hands to hold on to the staircase at the time of the fall.

The Second Department held that the plaintiff, in his opposition to the motion for summary judgment, failed to prove he was not the proximate cause of his own fall. Proximate cause is simply legal jargon that means that the event or action was sufficiently related to the injury that it could be said to be the cause of that injury.

Walking down the stairs with two full hands could have caused the plaintiff to be careless or unable to see where he was walking. He may have lost his balance or tripped. The stairway railing could not have caused or even prevented his fall because his hands were too busy carrying a pot to have grasped the handrail. Thus it could be said that the plaintiff was the proximate cause of his fall, not the faulty handrail.

Because the plaintiff failed to raise a genuine dispute regarding the cause of the fall, summary judgment was proper. The slip-and-fall complaint was therefore dismissed.

If you have been the victim of a slip-and-fall accident, consult the New York slip-and-fall accident lawyers at Gallivan & Gallivan today to discuss your potential claim.

Bardales v. VAM Realty Corp., 2015 NY Slip Op 00484

April 15, 2015

Appellate Division, First Department Holds City of New York May Be Liable for Icy Slip-and-Fall

The Supreme Court of New York, Appellate Division, First Department has reversed an order issued by the Supreme Court for New York County that granted the City of New York's motion for summary judgment and dismissed the plaintiff's complaint that an icy patch caused her to fall and injure herself.

frozen.jpgOn December 23, 2008, the plaintiff was walking on a public sidewalk when she slipped on some ice and fell. She later filed a lawsuit against the City of New York, alleging the City failed to timely clear the sidewalk of ice in order to prevent her fall. The City filed a motion for summary judgment to dismiss the complaint.

As a matter of law, a motion for summary judgment will only be granted if no genuine issue of material fact exists that needs to be decided by a jury. In its motion, the City argued several things. First, the City argued that the plaintiff contradicted herself in her affidavit and her deposition regarding what exactly she slipped on. At her deposition, the plaintiff described the ice as "dirty" with "snow layers on top of layers." The plaintiff later clarified in her deposition that the ice was "slushy ice" that was "clean, like slippery, flat" with a little snow on top. However, in an affidavit submitted in opposition to the City's motion for summary judgment, the plaintiff stated that the ice was "one inch thick, flat, hard, and dirty, as if it had existed for several days." The appellate court held the deposition was not inconsistent with the affidavit. In addition, the appellate court held it generated a dispute of fact that needed to be tried, not decided on a motion for summary judgment.

Second, the City argued that it did not have a sufficient amount of time prior to the fall to clear the ice off of the sidewalk. The appellate court has held previously that snow and ice left on a sidewalk following a storm creates an "unusual and dangerous condition" and that it is the responsibility of the City, if a public sidewalk, to clear the sidewalk of snow and ice within a reasonable amount of time following a storm. Interestingly, the City claimed in its motion for summary judgment that it routinely clears streets after a snow storm but is not in the habit of clearing sidewalks. Regardless, the appellate court held that whether the duty to clear the sidewalk after the storm was triggered was a triable issue of fact that could not be decided on a motion for summary judgment.

In its motion, the City included no affidavit of an expert witness such as a meteorologist. Rather, the City's attorney made broad, sweeping conclusions about the weather. However, the parties did agree about the nature of the weather. On December 19th, four inches of snow fell. On December 20th, 0.5 inches of snow fell. On December 21st, 0.2 inches of snow fell. On December 21st after the snowfall, non-freezing rain then fell, and the temperatures hovered above freezing. On December 23rd, the average temperature was 21 degrees and never went above freezing. The City argued that the ice had formed only 48 hours before the fall but provided no analysis of the weather data to support this conclusion.

In her opposition, the plaintiff demonstrated there was a triable issue of fact regarding the source of the ice. Using the expertise of a meteorologist, the plaintiff argued that the ice came from the snow storm on December 19th, four days before the fall. The meteorologist opined that the non-freezing rain storm could not have caused any ice due to the high temperatures.

Because summary judgment on a snow or ice case requires both climatological data and expert opinion, the defendant's motion for summary judgment failed. Therefore, the lower court erred in granting the motion. The lower court's order is reversed, and the complaint is reinstated.

If you or a loved one was injured in a slip-and-fall after a storm, please contact the New York slip-and-fall expert attorneys at Gallivan & Gallivan to discuss your case today.

Rodriguez v Woods, 2014 NYSlipOp 06887

January 13, 2015

Diving Board Liability and the Assumption of Risk

This post discusses a personal injury concept that, while at times confusing, often plays an integral role in determining liability: assumption of risk. Assumption of risk is a defense in a personal injury action in which a defendant claims that the plaintiff voluntarily undertook an activity with the knowledge that there is an inherent danger of suffering an injury while partaking in such an activity. As such, the defendant should not be held responsible if that injury does in fact occur.

To many, the concept of assumption of risk gained notoriety due in part to a famous decision written by Judge Benjamin Cardozo, at the time chief justice of the New York State Court of Appeals. The case was Murphy v. Steeplechase, 250 NY 479, but is often colloquially referred to as "the Flopper case." In 1929, Coney Island featured a ride known as the Flopper. We can only go by Judge Cardozo's descriptions in the decision, but the Flopper appears to have been a kind of long walkway/maze wherein the floor and walls and "flopped" about, causing riders to lose their balance in what presumably was a humorous and thrilling manner. Plaintiff, a "vigorous young man," fractured his knee cap on the ride, presumably from flopping about and eventually falling to the ground. He lost his lawsuit against the ride owners, with Judge Cardozo noting that, "One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball."

baseball crowd.jpgThe reference to sports is an appropriate one - the doctrine of assumption of risk has evolved greatly since this decision, particularly in the area of amusement park liability. Where the doctrine still has its greatest bite is in the area of sports liability. It is this very doctrine that has stifled the efforts of those who have been hit and injured by wayward balls at baseball games to be compensated for their injuries. Amusement parks are now far less likely to be protected by the doctrine of assumption of risk, the modern thinking being that people enjoy rides specifically because they do not believe there is any chance of being injured.

That said, assumption of risk doesn't only exist in the context of sporting events. In the recent Suffolk County personal injury case Freeman v. Village of Hempstead, 2014 NY Slip Op 06298, the plaintiff was injured when he fell off a diving board at a public pool. The defendant argued that the plaintiff assumed the risk of falling off when he got on the diving board. On its face, this argument seems reasonable. It did not win the day, however, and here we see a slight twist on the assumption of risk doctrine. The plaintiff alleged that the treads on the diving board, which are standard and meant to create some traction to reduce the risk of slipping and falling, were worn away and thus defective, and that the plaintiff did not assume this risk - only the risk of slipping and falling from a properly maintained diving board. This argument was successful, with the court finding that the defendant did not overcome its burden of showing that the lack of properly maintained treads on the board did not increase the risk of falling beyond what was assumed by the plaintiff.

The takeaway here is that a potential plaintiff should not assume that they assumed a risk by virtue of the activity they were partaking in when that injury occurred. Speak with a personal injury lawyer - they should be able to help inform you as to whether such an injury deserves compensation.

December 4, 2014

New York Personal Injury: Who Owes a Duty?

As we've discussed before on this blog, personal injury liability is determined in a manner that (in theory at least) resembles a checklist. Did the defendant owe a duty to the plaintiff? Check. Did the defendant breach that duty? Check. Did the breach of that duty cause harm to the plaintiff? Check. Duty, breach, causation, and harm: the four checkpoints of tort liability.

The above makes this all sound easy when in fact, in actual lawsuits, it is anything but. In this post, we will examine a legal concept relating specifically to the duty element. How do we know when a duty is owed to another? As we'll see, this also implicates the concept of causation - how far do courts extend "blame" for the actions undertaken by a defendant in a personal injury suit?

snowy lot.jpgThe case of Espinal v. Melville Contractors, an important 2002 action decided by the New York State Court of Appeals, helps to explain the concept of duty. The facts are fairly simple: the plaintiff, Ms. Espinal, slipped and fell in the parking lot of her employer, Miltope Corporation. Ms. Espinal sued Melville Snow Contractors, the company hired to plow the lot. The issue before the Court was whether Melville owed a duty to Ms. Espinal, which would be necessary for a finding of liability. Or did Melville's duty only extend to its client, Miltope Corporation, with whom it had signed a contract?

Generalizing a bit, the principle we're discussing here is useful when, for one reason or another, a plaintiff wishes to bring suit against a so-called "third party" - not the owner of the premises or property that caused your injury, but someone in contract with that person. For example: you get severe food poisoning from popcorn served to you by a movie theater. You soon learn that the theatre itself is bankrupt, so suing them may be an exercise in futility. But the popcorn maker, a different company than the theatre, is not. May you sue the popcorn maker?

The Espinal court identifies three situations where a plaintiff can seek damages from a third party, all having to do with the extent of the contractual undertaking by said third party. The greater the contractual duty assumed by the third party, the easier it will be to prove that the third party is liable to the plaintiff.

Espinal is an example of the law working as we would expect it to. As the Court makes clear, when a plaintiff has relied on the continued proper performance by the third party, that plaintiff should be able to sue the third party if that proper performance ceases or becomes deficient. Similarly, if the third party has essentially replaced the owner or "first party defendant," they will also be assuming certain liabilities. To bring us back to the movie theatre analogy, if a company rented out and operated every aspect of the theater without owning it, they would be liable for the selling of bad, sick-making popcorn.

As for Ms. Espinal, she unfortunately was unsuccessful. The court looked to the contract between the owners of the property where Ms. Espinal fell, and the snow removal company, which has agreed to remove snow and/or lay salt only when very specific conditions were met. Notably, the contract did not simply say, "We will keep your property snow-free, 24/7." If it did, there's a good chance Ms. Espinal would have prevailed.

If you feel that an individual or property owner has breached a duty causing an injury to you, or you think you may need to speak with a personal injury lawyer about an Espinal-like situation you have suffered, please contact our offices. We are happy to assist.

December 4, 2014

Liability for Sidewalk Accidents: Continued

In a previous post, we went over the laws governing which party is liable when a plaintiff trips and falls on a defective sidewalk in the City of New York. Brief review: NYC's Sidewalk Law places liability on "abutting" property owners - those who own the land next to that portion of the sidewalk - with exceptions for one, two, or three family homeowners where the homeowner also resides in the building. (In fact, the excepted homeowners can simply call the City up to perform sidewalk or tree repairs on their property). Here, we will examine ways in which the law treats differently certain features of sidewalks: trees and "tree wells," grates, and covers of certain other objects like cable boxes.

city tree.jpgIt makes sense that liability for negligently maintained tree wells (the little area housing one of New York City's ubiquitous sidewalk trees) is treated differently than liability for the sidewalk as a whole. A business owner, after all, relies on the presence of that sidewalk to give his customers a way to enter his place of business - he benefits directly from the presence of the sidewalk and as such, has an interest in making sure his section of it is well maintained and safe, even if he doesn't "own" that section. But a tree (for one example) is a bit different: the City likely planted that tree, or it was there before an owner bought the building, and that tree is doing little, if anything at all, to benefit the building owner.

As a brief but interesting aside: any building owner in fact can call up the City and request that a tree be planted on their portion of the sidewalk. Developers of new building are now in fact required to plant trees, though this doesn't change the liability for those trees we discuss in this post.

Basically, unlike sidewalks themselves, liability for tree wells, gratings (think sewers) and "covers" for cable boxes falls directly on the owner of that tree, grating, or cable box, with no exceptions. For things like sidewalk trees or gratings, this will more often than not mean the City is liable for injuries from negligent maintenance. The reverse is true for cable boxes, which usually are owned by building owners themselves. By law, gratings and covers must be "flush with the surrounding surface." If they are not, they are considered defective as a matter of law. That means that if such cover or grating is not flush, and someone trips on it, the owner will almost certainly be held liable in a lawsuit.

What does all this mean in practice? In Alexander v. City of New York and LaKane Realty Corporation, plaintiff Ms. Alexander tripped, fell, and injured herself on a broken up sidewalk. The area she fell on was allegedly directly next to both a tree well and a cable box cover. What happened in this case is fairly common for cases of this sort: Ms. Alexander properly sued both the City of New York and the adjacent building owner, reasoning that one or both of these two parties is responsible for the maintenance of this very specific area of the sidewalk. By doing this, a plaintiff allows two defendants to fight the issue out between them. Because Alexander went to the Second Department as an appeal of the Supreme Court's denial of the defendants' summary judgment motion, it was incumbent upon the defendants to show the absence of a triable issue of fact. Neither defendant was able to meet this burden.

Here at Gallivan & Gallivan, we've litigated a large number of sidewalk trip and fall cases. If you've been hurt in such an accident, contact our offices for information on how we can help.

December 1, 2014

Determining Liability in a Sidewalk Trip and Fall

Who owns the sidewalks of New York City? Usually, the City does, and based on that you might be tempted to assume that any injuries resulting from defects of those sidewalks - cracks and crevices and the like - would be the fault and responsibility of the City. You'd be wrong! And the reason you'd be wrong is the Sidewalk Law (colloquial name), passed by the City Council in 2003 to shift liability from the City to adjacent property owners of sidewalks, with some very notable and important exceptions.

Before we go into how the law works, a bit of context will be helpful. In any kind of personal injury action, a plaintiff quite naturally wants to make sure they file suit against any and all parties legally responsible for their injury, even if that responsibility is only partial. The doctrine of "joint and several liability" means that a plaintiff can collect their full recovery from any liable defendant, not merely the percentage for which that defendant is responsible. And of course, New York City is a defendant who possesses far more money, and is also often more willing to settle, than most.

sidewalk1.jpgIn a sidewalk liability case, then, the law being variable and subject to "tests", it often makes sense for a plaintiff who has been injured after a trip and fall to file suit against both the City and the adjacent property owners. It appears that this was exactly what the plaintiff did in Meyer v. City of New York et al., a recent case decided in the Appellate Division, Second Department. The plaintiff, Ms. Meyer, tripped and fell on a publicly owned sidewalk adjacent to property owned by several defendants. In addition to the property owners, she sued the City of New York, reasoning that under the Sidewalk Law, at least one of these parties is responsible for the negligent maintenance of the sidewalk.

The Sidewalk Law states that the maintenance of sidewalks is the responsibility of the property owner whose property directly abuts that sidewalk. As such, any injuries resulting from failing to complete that maintenance properly will fall on the property owner in terms of liability. However, there is an exception: if that adjacent property is a one, two, or three family home, and is occupied at least in part by the owner, and is "fully residential" (that is, there's no business on the premise), the Sidewalk Law does not apply.

The Meyer case was slightly unusual because one of the structures abutting the sidewalk was, in fact, zoned not for residential use, but for commercial use. It was used as a storage shed for the family's belongings. The court was thus tasked with deciding what should govern here: how the property was classified under zoning laws, or alternately, how the property was actually being used. They settled on the latter, and as such, the property owners managed to escape liability.

The Meyer case is also a good example of the type of personal injury lawsuit that can pit defendants against defendants while the plaintiff sits back and watches. Here, Ms. Meyer relied on the intricacies of the Sidewalk Law to hold the City accountable for her injuries.

The attorneys at Gallivan & Gallivan have litigated a large number of sidewalk trip and fall cases. If you've been hurt in such an accident, contact our offices for information on how we can help.

November 25, 2014

Second Department Allows "Expert" Testimony in Brooklyn Slip and Fall Action

On September, 24 the Supreme Court, Appellate Division Second Department overturned a decision by the Supreme Court, Kings County which granted a motion made by the defendants in that case for judgment as a matter of law pursuant to CPLR 4401. CPLR 4401 allows either party to ask for a judgment as a matter of law at any time after the close of the evidence presented by an opposing party. A judgment as a matter of law is a judgment made by the court that the non-moving party's evidence is insufficient to reasonably support its case. The original Supreme Court case was between Chayeh Fleisher and the City of New York. Fleisher claimed that she had slipped on a sidewalk in Brooklyn because the pavement was raised or uneven, and that the City was responsible because it had known of the defect in the sidewalk and had not fixed it in a timely manner. The City is only legally responsible for hazardous conditions created by sidewalks if it has notice of the condition long enough before the accident to be able to fix the problem.

concrete.jpgAccording to Fleisher, the City was made aware of the defect in the sidewalk via a map given to the city by the Big Apple Pothole & Sidewalk Protection Committee. In order to successfully sue the city for injuries caused by her fall, a plaintiff must prove, as per the Administrative Code of the City of New York § 7-201 (c) (2), that the city had prior knowledge of the defects in the sidewalk at that specific location and a sufficient amount of time to fix the problems. The Supreme Court denied the plaintiff's application to admit the Big Apple maps into evidence and further denied her request to admit the maps through the testimony of Irvin Loewenstein, a former Director of Sidewalk Management, and former Director of the Prior Notification Unit of the City's Department of Transportation. It also denied her request to have Loewenstein qualified as an expert in Big Apple maps so he could testify about the contents of the maps at the trial.

The Appellate Court ruled that because Lowenstein had worked for Big Apple Maps on behalf of the Department of Transportation for many years he could be assumed to have the requisite "skill, training, education, knowledge or experience" for which to be considered a reliable expert. Further they decided that this experience would allow him to lay a foundation for the maps to be entered into evidence. Business records are considered exempt from the rule disallowing hearsay to be admitted into evidence. But in order to be entered into evidence business records, regularly kept records kept in the normal course of business, must have a foundation laid for them. This can be done by someone who is familiar with the records; in this case the Court decided that Lowenstein, because he had worked with the maps while with the Department of Transportation, was properly qualified as an expert witness to lay a foundation for the maps.

The Appellate Court's decision is important because disallowing the maps and Lowenstein's testimony would have significantly affected the outcome of the case. Because the plaintiff was unable to introduce the maps the court found for the defendant on its motion for judgment as a matter of law because there was not sufficient evidence to prove that the city knew about the defect, which is a requirement before recovering from the city in these kinds of personal injury cases. Had the evidence been introduced, and there is precedent in other cases where Big Apple maps have been admitted as evidence, there is a good chance the defendant would have prevailed or at least have been able to satisfy the requirement that the City know of the fault. Because of the Appellate Court's decision the case will go back to the Supreme Court for a new trial in which Lowenstein will be allowed to testify, and the maps will be allowed into evidence.

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