Failure To Identify Cause Of Accident Proves Fatal To Fall Down Case (NY)In a New York premises liability lawsuit, a defendant may contest liability where a plaintiff cannot identify what caused the alleged accident without speculation. In Villanueva v. DJ’s Intl. Buffet, Inc., plaintiff alleged that he was injured in a fall while descending a restaurant staircase with a box in both hands. The trial court granted the restaurant’s motion for summary judgment and plaintiff appealed. The Second Department affirmed, holding that the defendants met their prima facie burden by establishing that the plaintiff could not identify the cause of his fall. In opposing summary judgment, plaintiff offered a speculative theory through his expert, who opined that the fall was caused by alleged violations of the New York State Building Code. The expert claimed that the accident was caused by improper lighting and defective treads and handrails on the staircase, rather than a misstep or loss of balance. The Court noted that plaintiff could not identify the specific cause of the fall so a finding that defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be speculative. The Court observed that although proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident, when there could have been many possible causes as to how an accident occurred, a cause of action must fail. The takeaway from Villanueva is that while a plaintiff may obtain a liability expert report addressing alleged defects and violations of applicable building codes, plaintiff must still identify the specific cause of his or her accident in a premises liability case. The failure to do so is grounds for summary judgment and defendants should consider this defense where appropriate. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.