Trip and Fall

One Inch Height Differential Can Be One Step Closer To Summary Judgment (NY)

When a plaintiff commences an action to recover damages for personal injuries involved in a trip and fall due to a height differential between a curb and a sidewalk, the condition must be actionable and not deemed trivial. For example, in Haber v. CVS Pharmacy, Inc., 2023 NY Slip Op 03002 (2d Dep’t June 7, 2023), the plaintiff alleged she tripped over a curb and sidewalk when walking at CVS Pharmacy, causing her to sustain injuries. Subsequently, plaintiff commenced a lawsuit against the defendant seeking to recover damages. Thereafter, after discovery concluded and depositions were held, the Defendant moved for summary judgment arguing the height differential or defect alleged between the sidewalk and the curb was physically insignificant and that the characteristics of the defect and surrounding circumstances did not increase the risk it posed. Further, Defendant relied on Plaintiff’s own testimony and photographs of the accident site, to establish the height was less than one inch, the incident occurred in the daytime hours under clear conditions and there were no crowds that obscured the plaintiff’s view of the sidewalk when she was walking on it. In cases like these, a property owner may not be held liable for trivial defects, over which a pedestrian might merely stumble or stub his toe or trip over. In determining whether a defect is trivial, the court examines factors such as the “width, depth, elevation, irregularity and appearance of the defect alongside the time, place and circumstance of the injury.” See, Trincere v. County of Suffolk, 90 N.Y.2d at 978. Here, the lower court held, and the second department recently affirmed, that the defendant’s motion for summary judgment dismissing the complaint should be granted because the defendant’s established the height differential was trivial and therefore not actionable. As such, the plaintiff’s claim was dismissed. Thanks to Lauren Howard for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Liability Of An Out of Possession Landlord (NY)

Where a landlord leases a premises and does not retain control over it during the duration of the leased term, a landlord cannot face liability. The prevailing case law holds that an out of possession landlord is not liable for injuries on a leased premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or conduct, to perform the relevant maintenance and repairs. This situation was addressed in the recent decision of Washington v. Jay St. Dev. Corp., 2023 NY Slip Op 01818 (2d Dep’t April 5, 2023), plaintiff alleged she was injured when she tripped over a curled-up edge of a runner mat in the lobby of a building, causing her to slip and fall on the wet marble floor. At the time of the accident, the lower floors of the premises, including the lobby, were leased by the City of New York and the upper floors were leased by commercial tenants. Employees of the City of New York placed and maintained the runner mat on the lobby floor. The landlord, Jay Street Development Corp., moved for summary judgment on the grounds that it was not a proper party to be sued because it was an out of possession landlord with no duty to maintain the lobby. The court noted that because plaintiff alleged common law negligence claims, rather than a violation of a statute, the defendant established its entitlement to summary judgment because it did not have a duty to maintain the premises by contract or conduct. The court further noted that the landlord could transfer its duty to maintain the premises in a reasonably safe condition to the City pursuant to the lease, even though the lobby was in public use, and there was no evidence that the landlord knew or should have known of the dangerous condition at the time the lease was entered into. Failing to raise an issue of fact, the Second Department upheld the lower court’s decision to dismiss plaintiff’s amended complaint as asserted against the landlord. This case serves as a reminder of the factors considered in determining whether liability can be imposed upon an out-of-possession landlord. Thank you to Gabriella Scarmato for her contribution to this article. Should you have any questions, please contact Andrew Gibbs.Read More

Step On A Crack, Creator Needs To Pay To Fix Your Mother’s Back (NY)

If there is a triable issue of fact as to whether the actions of the defendants caused or created the hazardous condition that allegedly caused the plaintiff’s accident, summary judgment will be denied. Recently, the Appellate Division, Second Department overturned the lower court’s granting of summary judgment to the defendant in Abramson v. Janowski’s Hamburgers, Inc., 2023 NY Slip Op 02293 (2d Dep’t May 3, 2023). Plaintiff was allegedly injured when she tripped and fell over a crack in a sidewalk in Rockville Centre. Defendants operated a wholesale and retail hamburger products business, with a loading dock located across the street from the sidewalk crack that allegedly caused the plaintiff’s accident. Defendants were awarded summary judgment in the trial court. Liability for a dangerous condition on real property, is based on ownership, occupancy, control, or special use of the property. The existence of one or more of these elements gives right to a duty of care. However, liability can also be imposed upon a party that created the dangerous or defective condition. In opposition to defendant’s summary judgment motion in Abramson, plaintiff submitted the deposition testimony of an individual who had lived next door to the defendants’ premises for nearly 56 years. The neighbor testified that the street on which he lived was a dead-end street that was mostly residential, and that the drivers of 18-wheel tractor-trailers that made deliveries to the defendants’ business, while maneuvering into the driveway of the premises, frequently drove onto the sidewalk across the street, thereby creating the condition that caused the plaintiff to trip and fall. Furthermore, the neighbor had, on numerous occasions, observed Vogelsberg and other employees of Janowski’s Hamburgers, Inc., and Bianca Burgers, LLC, directing truck drivers onto the sidewalk while assisting them in backing up to the loading dock. As such, the Court ruled that this evidence was sufficient to raise a triable issue of fact whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident. With that, the decision was reversed on appeal. This case serves as a reminder of the salience of causation. Thanks to Rebecca Pasternak for her contribution to this article. Should you have any questions, please contact Andrew Gibbs.Read More

Your Neighbor’s Point of View Can Help Overcome Motion for Summary Judgment (NY)

When a defendant obtains a summary judgment against a plaintiff, the fight does not end there. While the discretion ultimately remains with the court, a summary judgment may be reversed on appeal if the opposing party submits evidence that raise a triable issue of material fact.

For example, in Abramson v Janowski’s Hamburgers Inc. 2023 NY Slip Op 02293 (2d Dep’t May 3, 2023), plaintiff allegedly was injured when she tripped and fell over a crack in a sidewalk located across the street from the defendants’ wholesale and retail hamburger products business. The hamburger defendants used their loading dock and driveway across the street from the sidewalk crack that allegedly caused the accident.

Plaintiff subsequently commenced a lawsuit against the defendants alleging the defendants were negligent in that the defective sidewalk condition was caused and created by trucks that drove onto the sidewalk while making deliveries to the defendants’ premises.

Thereafter, the defendants moved to dismiss the complaint as asserted against them. The lower court granted the defendants’ motion and the plaintiff appealed.

Thereafter, the second department reversed the lower court’s decision to grant the defendant’s summary judgment motions. Although as a general proposition, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control or special use of the property, liability can also be imposed upon a party that creates the dangerous or defective condition.

Here, the plaintiff submitted deposition testimony of an individual that resided next door to the defendants’ premises for nearly 56 years. The neighbor testified he lived on that street for many years and witnessed drivers of 18-wheel tractor-trailers make deliveries to the defendants and while doing so, maneuvered into the driveway and frequently drove onto the sidewalk across the street. As such, the neighbor witnessed employees of the burger companies direct the truck drivers onto the sidewalk to use their loading dock.

Accordingly, the neighbor’s testimony was sufficient to raise a triable issue of fact as to whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident. Therefore, the defendants’ motion for summary judgment was reversed and denied.

Thank you to Lauren Howard for her contribution to this post.  Should you have any questions, please contact Matthew Care.  Read More