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Expert Affidavit Cannot Overcome Inability To Identify Cause Of Fall

August 17, 2010

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It is well established that in a slip and fall action, the plaintiff's inability to identify the cause of the fall is a fatal flaw. In <i>Murphy v. The New York City Transit Authority</i>, the plaintiff was injured when she slipped and fell on a stairway in a subway station. The Transit Authority was granted summary judgment because the plaintiff could not identify the cause of her fall and the Appellate Division affirmed.
On appeal, the Appellate Division addressed whether an affidavit of an engineer stating that the stairs violated certain provisions of the New York State Building Code was enough to overcome the plaintiff's inability to identify the cause of her fall. The Second Department held that it would be purely speculative to find that the alleged violations in the engineer's report proximately caused the plaintiff's fall.
Thanks to Ed Lomena for his contribution to this post.
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