In the recent case Cigdem Altinerlielmas Tanriverdi, et al. v. United Skates of America, Inc., the Second Department clarified its rule regarding the burden a plaintiff must meet for demonstrating causation in a premises liability case. 2023 N.Y. Slip Op. 05529 (2d Dep’t Nov. 1, 2023).
Plaintiff alleged she was injured while roller skating at defendant’s rink. The trial court denied defendant’s motion for summary judgment.
On appeal, the Second Department outlined the long-held general principle that in premises liability cases, a defendant has established its entitlement to summary judgment when it has shown that it “neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence.” Colon v New York City Tr. Auth., 201 A.D.3d 867 (2nd Dept. 2022).
A landlord-defendant’s possible defenses do not end there. Citing its precedent, the Court held that a defendant can also establish entitlement to summary judgment “by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation.” Grande v. Won Hee Lee, 171 A.D.3d 877 (2nd Dept. 2019). Moreover, “[w]here it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation.” Ash v. City of New York, 109 A.D.3d 854, 855 (2nd Dept. 2013).
The Grande rule is critical for personal injury defense practitioners. The rule makes the task of asking the plaintiff probing questions during their deposition about the mechanism and nature of the fall an urgent one. In Tanriverdi, the Court was persuaded by the defendant’s submission of the plaintiff’s deposition transcript, in which she could not identify the cause of her accident without speculating.
Assessing the documentary evidence and applying the Grande rule, the Court reversed and granted the defendant’s summary judgment motion. The overriding lesson for the defense bar is to always pinpoint causation throughout examinations before trial.