Habit Evidence of Defendant’s Actions Post-Accident Held Inadmissible in Slip & Fall on Ice Case

The following post discusses a recent decision by the New York State Appellate Division, Second Department, regarding the admissibility of “habit” evidence during a personal injury trial.  In many instances, people think of personal injury law as straightforward or “cut and dry.”  What could be complex about someone slipping and falling?  This case is an example as to how personal injury cases are not always that straightforward particularly at the trial stage.

On December 23, 2010, plaintiff Veronica Gucciardi slipped and fell on ice in a parking lot outside of a restaurant owned by the defendant, New Chopsticks House. The plaintiff sues the defendant in a negligence cause of action for personal injuries suffered as a result of the incident. The Supreme Court of Richmond County granted the defendant’s motion to preclude the introduction of evidence related to a surveillance video. The surveillance video at issue contained footage of post-accident measures taken by the employer, which showed an employee dumping a bucket of water into the parking lot. Upon granting the defendant’s motion, the plaintiff appealed. The Appellate Division held that evidence of video recordings and testimony was inadmissible.

In the case at hand, the Appellate Division held that a party in a negligence case is permitted to introduce evidence of a habit or routine practice to allow the inference of negligence on a particular occasion. Gucciardi v. New Chopsticks House, Inc., 133 A.D.3d 633 (2nd Dept. 2015). To justify introduction of evidence pertaining to habit or routine practice, the moving party must prove a sufficient number of instances of the opposing party’s conduct. Id.

Here, between February and April 2011, an investigator performed surveillance of the parking lot on eight occasions after the accident. On seven particular occasions, he videotaped defendant’s employee wheeling a mop bucket out of the restaurant and emptying the bucket into the parking lot. The plaintiff alleged that this action caused the icy condition on the night the plaintiff was injured because the water eventually froze.

At trial, the Supreme Court granted the defendant’s motion to preclude the plaintiff from introducing the surveillance evidence and any testimony related to the investigator’s videos. The jury subsequently returned a verdict in favor of the defendant and judgment was entered dismissing the case.

On appeal, the Appellate Division affirmed the lower court’s discretion prohibiting the evidence, holding that the introduction of habit or regular usage requires a showing of sufficient number of instances of conduct in question. Here, the earliest instance of the defendant’s habit was two months after the plaintiff was injured. The action was observed on only seven occasions over the course of six weeks.

The court contrasted the case at hand with another Appellate Division case.  In Greenberg, et al., v. New York City Transit Authority, the court allowed a subway train passenger’s testimony regarding his observations of the transit authority’s employees cleaning the cars of a train at a station during the early morning hours on many prior occasions. Greenberg, et al., v. New York City Transit Authority, 290 A.D.2d 412 (2nd Dept. 2002). In Greenberg, the testimony was sufficient to establish routine habit of the Transit Authority because the plaintiff, Greenberg, had been riding the A train for over 25 years. In addition, several other plaintiffs offered proof in support of Greenberg’s testimony that they observed the defendant’s employees cleaning the A train at a particular stop every morning that left a soapy substance on the floor. Thus, there was sufficient circumstantial evidence to establish that the defendant in Greenberg engaged in the same routine as it normally did, on the morning of the alleged accident.

Unlike in Greenberg, here, there was no sufficient evidence to establish that the defendant’s conduct was routine or habit before the accident occurred. Therefore, no inference could be drawn that the plaintiff’s accident was a result of such conduct. Accordingly, the court affirmed the lower court’s decision.

The attorneys at Gallivan & Gallivan have been protecting the rights of clients since 1972.  We will help you navigate the complexities of your personal injury case.  Contact us with any questions you may have.

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Gucciardi v. New Chopsticks House, Inc., 133 A.D.3d 633 (2nd Dept. 2015).

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