Slip And Falls

December 30, 2015

Defendant Fails to Submit Evidence of Last Inspection of Slate; Case Proceeds

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, Second Department in Bergin v Golshani, 2015 NY Slip Op 06103 [130 AD3d 767], denied a defendant’s motion for summary judgment to dismiss a cause of action alleging negligence.

In the slip-and-fall case, the plaintiff sought to recover damages for personal injury for defendant’s failure to inspect the area where plaintiff was injured. Here, the plaintiff fell on a loose piece of slate on a slate stone landing. Nassau County Supreme Court denied the defendant’s motion for summary judgment to dismiss the plaintiff’s cause of action alleging negligence. The defendant’s cross-appealed the court’s decision denying its motion for summary judgment to dismiss the cause of action. Continue reading

December 29, 2015

Slip & Fall Victim’s Case Will Proceed; Defendant Sanctioned For Failing to Provide Maintenance Documents

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, Second Department in Schiano v Mijul, Inc., 2015 NY Slip Op 06910 [131 AD3d 1157], affirmed a trial court order for the imposition of sanctions for the failure to produce necessary documents in an action to recover damages for personal injuries.

The plaintiff was injured when he slipped and fell while walking in the parking lot of defendant’s premises in 2006. The plaintiff claims that he fell “due to the presence of a defective matter in maintaining the path.” The plaintiff also claimed that the defendants were reckless, careless, and negligent in failing to properly fix, repair, and maintain the area, which he walked upon. The plaintiff also argued that the defendants’ failure to maintain the area was a breach of their duty of reasonable owning, operating, and maintaining the area. As a result of the plaintiff’s fall, he claims to have suffered injuries and brought an action to recover damages for his injuries.

September 27, 2015

Verdict for Injured Person Upheld in Slip & Fall on Ice Case

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, Fourth Department upheld a jury verdict that found the City of Dunkirk Housing Authority liable for a slip & fall accident that occurred one icy winter day.

The City of Dunkirk Housing Authority owns a residential facility that is open 24 hours a day. Residents leave and return to the building at all hours. In addition, visitors and healthcare workers can visit the building before 8:00 a.m. and after 4:30 p.m. However, maintenance for the facility only works between 8:00 a.m. and 4:30 p.m. If something happens after 4:30 p.m. that requires maintenance, maintenance will not attend to the situation until the next day after 8:00 a.m.

During the winter, a patch of ice formed on the sidewalk in the early morning. The plaintiff, a visitor to the facility, slipped and fell on the ice patch, sustaining injuries. She brought a personal injury lawsuit against the City of Dunkirk Housing Authority. The case proceeded to trial. At the end of the defense’s case, the defendant moved for a directed verdict under CPLR 4401.

September 17, 2015

Judge Sanctions Defendant Restaurant for Disposing of Umbrella That Fell on Patron

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, Fourth Department affirmed a lower court order that punished a defendant restaurant for throwing away a key piece of evidence.

The plaintiff was sitting on the outside patio of the defendant Raspberries Café & Creamery in Oneida County. The tables on the outside patio were shaded by large overhead umbrellas. One umbrella fell and hit the plaintiff’s face and head. The plaintiff sustained injuries. Thereafter, the café threw away the umbrella.

The plaintiff filed a personal injury lawsuit. During the discovery process, the plaintiff requested access to the faulty umbrella. However, the defendant was unable to find the umbrella base and had already disposed of the umbrella. The plaintiff filed a motion seeking sanctions for discovery violations. The trial court granted the order and sanctioned the defendant by (1) precluding any defense evidence of the condition of the umbrella and (2) issuing an adverse inference charge.

August 24, 2015

Group Home May Be Liable for Fall at Restaurant

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, Fourth Department reversed an order issued by a trial court judge that granted a group home’s motion to dismiss in a slip & fall case that occurred at a restaurant.

The lawsuit was filed by the plaintiff’s parents on behalf of a disabled adult child. The plaintiff was an adult with disabilities who lived in a group home operated by defendant Oswego County Opportunities. Oswego County Opportunities arranged for the plaintiff, another resident, and some employees to go on an overnight trip. The group ate dinner at the defendant Old Mill Restaurant. After his dinner was served, the plaintiff became upset. He decided to walk outside to the parking lot to cool off. He stood up, walked to a side door in the dining area, walked through the side door, and then proceeded to fall straight down into the parking lot. The side door was elevated off of the ground and had no stairs that connected the doorway to the parking lot below. The plaintiff sustained injuries in his fall and brought a personal injury lawsuit against Oswego County Opportunities and Old Mill Restaurant.

Oswego County Opportunities filed a motion to dismiss the claims against it, as well as a motion seeking reimbursement for photocopying expenses that were incurred as part of responding to the complaint and filing the subsequent motion to dismiss.

August 24, 2015

Fourth Department Further Clarifies Assumption of Risk Doctrine in Dart Case

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court order that denied the defendants’ motion for summary judgment in a personal injury case involving a dart board at a bar.

Mooney’s Sports Bar & Grill is owned by McCann’s, Inc. Daart Amusement is a company that manufactures and services dart boards for bars and restaurants. Daart installed a dart board at the sports bar. One day, the plaintiff was at Mooney’s, standing near the dart board. A patron playing darts threw a dart at the dart board, which then struck the plaintiff. The plaintiff filed a personal injury lawsuit against McCann’s and Daart.

Both defendants filed a motion for summary judgment, requesting that the complaint be dismissed. In its motion, McCann’s argued that the plaintiff’s claim was barred under the doctrine of assumption of risk. The trial court rejected this argument and denied McCann’s motion for summary judgment. McCann’s also argued that the plaintiff was the sole proximate cause of his injuries, but because McCann’s failed to include an affidavit or affirmation supporting this contention, the court declined to consider the argument.

August 19, 2015

First Department Upholds $250,000 Jury Verdict for Infant Injured by Projectile Rock

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, First Department affirmed a trial court’s order that denied both the defendant’s motion for new trial and the defendant’s motion to reduce judgment interest rate in a personal injury case involving a lawnmower accident.

An employee of the New York City Housing Authority was mowing a lawn using a lawnmower. The plaintiff, a small child, was standing near the yard. When the lawnmower ran over a rock, the machine ingested the rock and then rapidly ejected it at the plaintiff. The rock struck the plaintiff on the left shin. The projectile rock caused serious and permanent damage. The plaintiff suffered from a large, open gash with exposed shin bone, a spiral fracture in his left tibia bone, and permanent damage to the tendons, ligaments, muscles, and nerves in his leg. The plaintiff was immediately hospitalized and remained in the hospital for 3 days where he was outfitted with a cast and necrotic tissue was removed. The plaintiff wore the cast for 6.5 weeks. When the cast was removed, he was left with a permanent scar that ran the length of his shin. Due to permanent muscle and tendon damage, the plaintiff can no longer participate in sports.

As a result of the accident, the plaintiff filed a personal injury lawsuit against the New York City Housing Authority. Even though the New York City Housing Authority itself was not personally responsible for the accident, its employee was, and the employee was acting as an agent of the Housing Authority when he was mowing the lawn. Employers are responsible for the actions of their employees and can be liable when the employees act negligently while on duty and performing their work tasks. This employee was tasked with mowing lawns for properties owned by the Housing Authority. The employee must take care when mowing lawns to ensure he operates the lawn mower safely. Running over a rock is dangerous – it can damage the lawn mower and can cause an accident such as this. Because the employee acted negligently by running over the rock, the Housing Authority was liable for his negligence.

August 19, 2015

“Horseplay” Injury Claim Not Foreclosed by Assumption of Risk Doctrine

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court’s order denying the defendants’ motion for summary judgment in a personal injury case involving horseplay in a pool at a party.

The defendants hosted a party at their house. Around 1:00 a.m., the plaintiff joined some others in the pool. The pool was above-ground and equipped with a long slide. The plaintiff dove head-first down the slide. When she slid into the pool head-first, she hit her head on the bottom of the pool and sustained injuries. The plaintiff filed a personal injury lawsuit, alleging the defendants were responsible for her injuries.

The defendants moved for summary judgment, arguing that the plaintiff’s claims were prevented by the doctrine of assumption of risk. The defendants argued that the plaintiff participated in a risky activity (sliding into a pool head-first) and that the plaintiff was therefore the proximate cause of her accident. As such, the defendants argued that the complaint be dismissed. The plaintiff filed opposition papers, and the trial court judge denied the defendant’s motion for summary judgment. The defendants appealed.

August 1, 2015

Plaintiff Granted Partial Summary Judgment in Labor Law 240 Case

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, First Department granted partial summary judgment to the plaintiff in a ladder / elevation case under Labor Law 240.

The plaintiff was an electrician for Atlas-Acon Electric Service who was working on NBC property in New York City. The plaintiff ascended an A-frame ladder in order to replace the ballasts on 25 light fixtures. After completing his job, he began to descend the ladder. At this time, the ladder swayed, and the plaintiff fell, sustaining injuries. The plaintiff filed a personal injury lawsuit for Labor Law 240 violations.

Labor Law 240 (1) is also known as the Scaffold Law. Labor Law 240 covers protections for employees working at elevated heights. It requires employers to provide or erect scaffolding, blocks, irons, ropes, pulleys, and harnesses for employees working at elevated heights. The law was codified in order to protect employees from the increased risk of danger and injury at elevated heights. The law is specifically directed at employees working on construction or renovation sites. When an employer fails to provide or maintain any equipment as required by Labor Law 240, the employer has violated the law. A violation of Labor Law 240 is evidence of negligence if the employee falls or is otherwise injured due to lack of safety equipment.

July 30, 2015

NY Landlord Liable for Corroded and Dilapidated Stairs

by Law Offices of Thomas L. Gallivan, PLLC

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court’s order denying summary judgment to a landlord sued by his renter after a nasty fall down the stairs.

The plaintiff lived in a duplex owned by the defendant landlord. A set of exterior metal stairs at the building led to the front entrance. The metal was corroded, and parts of the handrail that had corroded had been haphazardly welded back together. The plaintiff descended the stairs, gripping the handrail on his way down. A portion of the handrail that had been welded then broke off in the plaintiff’s grasp, causing him to tumble down the stairs. The plaintiff sustained injuries due to the fall.

The plaintiff brought a premises liability lawsuit to recover for personal injury damages. In his complaint, the plaintiff alleged that the landlord was negligent in maintaining the stairs and handrail in a safe condition. The landlord filed a motion for summary judgment, requesting that the complaint be dismissed.