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Thursday, January 7, 2016

2d Judicial Division, Appellate Department Roundup Special Edition: November 18, 2015, Slip/Trip and Fall

Since the Appellate Division, 2d Department, decided 6 slip-or-trip-and-fall cases on November 18, 2015, the Roundup decided to do a special edition just to go over these cases. Hutchinson came down only a few months ago, and it’s always a service to clearly outline how the law is and how the law changes in this important area of personal injury law.

A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property. However, a landowner has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous, or where the allegedly dangerous condition can be recognized as a matter of common sense. This was the law as stated in Dean Boland v. 480 East 21st Street, without a comment as to what the case was really about. 

But this statement ties into another case, Kristi Mucciariello v. A&D Hylan Boulevard Associates, LLC. The plaintiff was an employee at the defendant’s premises and was injured on the walkway leading to the building. As she moved to the side of the walkway to make room for a person in a wheelchair, her left foot tipped over the edge of the walkway and stepped into a bed of decorative stones. The complaint was that the height differential between the walkway and the stone bed was a hazardous condition, but the Court found that the condition was open and obvious and not inherently dangerous, and the plaintiff was not able to recover.

When someone trips and falls, it is important to identify why that person tripped and fell and whether it was the property owner’s responsibility to repair the hazardous condition that caused the fall. In Joel Fishelson v. Kramer Properties, LLC, a patron of a bagel store in Queens fell on a single-stop riser that led to an elevated dining area with tables and chairs. Although the condition did not require that handrails be installed, the plaintiff successfully argued at the Supreme Court that there were insufficient visual cues alerting the plaintiff to the step. The Appellate Division threw out the plaintiff’s expert’s report, and found that because the plaintiff had perceived the step and had navigated it with no difficulty earlier, it was an open and obvious condition and the plaintiff could not claim otherwise.

In another trip and fall, in April of 2013, the plaintiff was injured while walking across the lobby of the defendant’s credit union. As she was walking over a rug covering a portion of the tile floor, she tripped and fell. After the plaintiff fell, she noticed that part of the black rubber edge around the rug was bent upwards. The plaintiff, any defendant, nor the surveillance footage could demonstrate that the rug was folded up before she fell. Because it would require the jury to impermissibly speculate as to the cause of her fall, the case was thrown out for not meeting a basic burden of demonstrating with some evidence of how she fell.

However, for slip and fall, the burden shifts slightly. Since the condition is generally not open and obvious, since water, or ice, is transparent and difficult to see, and inherently dangerous, as it causes people to slip and fall, the question then shifts to whether the defendants had notice. In a constructive notice case, where the defendants should reasonably have been on notice of the defect, a defendant in a slip-and-fall case must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell. In Carmen Buitrago v. Gutman Management Co., Inc., the plaintiff allegedly slipped and fell on a puddle of water near a planter in the hallway of a building owned by the defendants. Because the defendants failed to proffer evidence as to when the area where the plaintiff was last inspected or cleaned in relation to the plaintiff’s accident, they failed in their summary judgment motion.

In Dodo Milorava v. Lord & Taylor Holdings, LLC, the plaintiff fell in May 2010 on water that accumulated on certain marble tile flooring near the entrance of the defendant’s department store premises. The defendants here failed to establish when the area where the plaintiff fell, or any of the entrances to the store, were last inspected in relation to the plaintiff’s fall. The only testimony was in regards to general policies from 2012, two years after the plaintiff fell. 


Tuesday, November 17, 2015

EMTs Declare Woman Dead; She Isn't

In cases of medical malpractice, an individual who is responsible for another's medical care commits medical malpractice when he or she deviates or departs from accepted practice and that the deviation and departure was a cause of the patient's further injury. EMTs can be held liable for medical malpractice. Last week, on 115th Street near 103rd Avenue in Richmond Hill, Queens, a woman attempted to commit suicide by shooting herself in the head. The EMTs from Jamaica Hospital responded to the scene, declared the woman dead, and left. NYPD officers from the 106th precinct, preparing the scene for investigators to arrive, "heard gurgling noises and at least one heard wheezing coming from the woman." The two EMTs have been barred from responding to patients by Jamaica Hospital's staff until an investigation has been completed.

This kind of malpractice is all to common in New York City. The lawyers at Feldman, Kronfeld & Beatty can help. If you, or a loved one, has been hurt by careless, reckless, or negligent EMTs or ambulance workers, you can call us for a free consultation at (212) 425-0230 or at info@fkbeatty.com.


Tuesday, September 29, 2015

Hit & Run Driver Leaves Pedestrian Seriously Injured in Queens

As we've discussed previously, the attorneys at Feldman, Kronfeld & Beatty are specialists in working with pedestrians who have been struck by automobiles, bicycles, motorcycles, and trucks. Some pedestrians suffer injuries that will haunt them for the rest of their lives, even though they were just trying to, for example, get to the store or go to a friend's house.

On Sunday, a hit & run driver in Forest Hills struck a pedestrian. It is reported that the vehicle did not even slow down before hitting the pedestrian, and kept on driving. The injured man is in serious condition at Jamaica Medical Center in Brooklyn. He was hit so hard that his body went flying and struck metal dumpsters; these secondary injuries may even be worse than the initial impact. This man may have a case against the driver of the automobile if they were able to get the license plate, make, and model of the car, or a case against the man's own uninsured motorist policy or MVAIC if that information remains unknown.

It is important that, if you have been hit by an automobile, to call experienced trial attorneys as soon as possible. The law firm at Feldman, Kronfeld & Beatty can help you if you're a pedestrian who has been hit by an automobile, even if you don't know the make, model, or license plate of the car. You can contact us at (212) 425-0230 or at info@fkbeatty.com for a free consultation.


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