Wade Clark Mulcahy LLP

It is no surprise that the failure to identify the cause of a fall is fatal to a Plaintiff’s claim in a slip-and-fall accident. However, what happens if a party identifies a potential cause of their fall and fails to assert that it was a potential cause of their accident? Unsurprisingly, as is often the case, if a plaintiff fails to include or assert a claim, then the Court will not consider it, even if it has potential validity. This was the case in the matter William T. Lucas v. Genting New York, LLC.

Plaintiff, Alice Lucas, prior to her death, testified she was unable to identify what caused her to trip and fall while walking on a walkway outside the property owned by the Defendant. When the defendants moved for summary judgment because of this, Lucas opposed the motion by claiming that the area where she was walking had not been properly illuminated. However, the Court did not find this to be a triable issue of fact that warranted denial of summary judgment because Plaintiff never alleged that the inadequate lighting was the proximate cause of her fall.     and as such, even if that was true, because it had not been alleged this was the proximate cause of the accident, the Plaintiff still failed to identify what caused her to trip and fall, thereby warranting dismissal of her case.

This case clearly demonstrates the importance of accounting for every possible cause of a fall in a trip-and-fall case, and this is true regardless of which side of the lawsuit you fall on, no pun intended. As the Plaintiff, you need to be sure you can accurately identify what caused you to fall. As a Defendant, if a potential cause is noticed, but Plaintiff does not initially argue that is the cause but tries to do so later, be sure to call out the improper use, as it may just provide you a win in your case.