Slip and Fall

Wednesday, March 30, 2016

2d Department Appellate Roundup: Cases of Interest

Two cases are of particular interest, both decided today:

In Chilinski v. LMJ Contracting, Inc.
Read more . . .

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. 

Wednesday, December 2, 2015

2d Judicial Department, Appellate Division Roundup: November 12, 2015 Edition

In this edition of the Roundup, we have an interesting round of construction accident and motor vehicle cases, most of which shows the powerful extent of timely summary judgment motions to clear the air of issues. In a construction accident case, summary judgment removed most of the height-related issues but kept the key failure of the case. But in a few slip-and-fall on ice cases, the Court was relunctant to introduce habit evidence or find that the City had time to correct the icy crosswalk. More, after the jump . . . 

Read more . . .

Monday, November 16, 2015

1st Judicial Department, Appellate Division Roundup: November 5, 2015 Edition

In this edition of the Roundup, we're limited by only three personal injury related cases decided on November 5 - a medical malpractice, a workplace injury indemnification dispute, and a summary judgment motion on the slope of the interior floor of an apartment on a slip-and-fall.

Michael Ferrante v. Metropolitan Transportation Authority

Michael Ferrante is a "sandhog", someone who works in the tunnels beneath the city of New York. The law firm of Feldman, Kronfeld & Beatty often represent construction workers and those who have suffered injury from construction accidents. Here, Mr. Ferrante is working on a project connecting Metro North Station with Pennsylvania Station. One of the defendants, Kelley Engineered Equipement, LLC, designed a transporter used in that project. Mr. Ferrante was asked to stand on top of the transporter while it was carrying a roadheader, or a machine used to mine the tunnel. The transported tipped over, and Mr. Ferrante was injured. While this was a motion for summary judgment for Kelley to get out of the case, Mr. Ferrante's immediate employer, Dragados-Judlaw, may have been aware that the roadheader would be unstable unless loaded with its boom arm configured to offset any off-side on the load. Therefore, Kelley was not able to get out of the case.

Julio Anthony Lopez v. Vincent Gramuglia, DPM

Dr. Gramuglia, a podiatrist, is alleged in this case to have failed to diagnose a condition called "deep vein thrombosis" or DVT, a medical condition that caused plaintiff's pulmonary embolism. Mr. Lopez, the plaintiff, is alleging medical malpractice against the defendant doctor. The Court sides with the doctor, finding that the doctor did deviate from care in failing to account plaintiff's risk factors for developing DVT, since there was not evidence of the risk factors for the case at bar.

Jorge DaSilva v. KS Realty, LP

This is a unique case, because it involves a tenant suing the landlord for personal injury due to defects within the plaintiff-tenant's apartment. In this case, the plaintiff alleged that the sloping condition in his apartment caused his desk chair to roll on the hallway floor, which caused him to fall. The defendant was able to defeat the case on summary judgment because he had an expert who gave an opinion that the 4% slope in the area where plaintiff allegedly fell was not a dangerous condition and was not a proximate cause of the accident. The plaintiff's expert failed to address how the slope was a proximate cause of plaintiff's fall from his chair.

Friday, November 6, 2015

2d Judicial Department, Appellate Division Roundup: October 28, 2015 Edition

In this good dozen decisions, we have a basic lesson on hearsay evidence, as well as multiple occasions where cases against municipalities are lost due to proper notice requirements, and some cases laying out the basic law regarding medical malpractice. Also, a foray of teen house parties into the realm of premises and landowner negligence, after the jump . . .

Read more . . .

Friday, October 30, 2015

2d Judicial Department, Appellate Division Roundup: October 21, 2015 Edition

In this edition of the Roundup, we explore the voiding of a jury verdict for $0 for future pain and suffering for a slip-and-fall in a grocery store, and the defeat of defendants' summary judgment motion in a case involving an elementary school teacher abusing his pupils. We also explore some more slip-and-fall cases, some automobile threshold actions, and an interesting note regarding preclusion and the bill of particulars. More, after the jump . . .

Read more . . .

Wednesday, October 28, 2015

1st Judicial Department, Appellate Division Roundup: October 20, 2015 Edition

In this threshold-case heavy selection from the First Department, we have one unusual case where Justices Tom and Andrias dissent on the question of what the defendant must show to make a prima facie case that they did not have constructive notice of a condition.  More, after the jump . . . 

Read more . . .

Wednesday, October 21, 2015

Court of Appeals Alert: Trivial Defects Discussed in Depth in Hutchinson

On October 15, the Court of Appeals had a huge and in-depth discussion of three trip-and-fall personal injury cases that arrived on its docket on a motion for summary judgment for the triviality of the defect. In discussing the defect, the Court gave practitioners a good perspective on future slip and fall cases. To summarize, the Court gave three clarifying notes:

1)  The triviality of a defect does not have to do with its height or other physical characteristics so much as it has to do with whether its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses.

2) The relevant question is not whether the defect is capable of being a trap, but whether the defect was difficult to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.

3) The defendant must make a prima facie showing of the triviality of the defect as a matter of law.

More, after the jump . . .

Read more . . .

Monday, October 19, 2015

Dangers Under Your Feet: Falling Into Sidewalk Vaults

The offices of Feldman, Kronfeld & Beatty have been located in lower Manhattan for twenty five years. In those times, and as the lawyers and staff use the subways, buses, and taxis of New York City to get to court, to depositions, to interview clients, and to inspect accident sites, sometimes we pass over sidewalk vaults. And, as we learned this week, and as the clients of Feldman, Kronfeld & Beatty know from personal experience, sidewalk grates are dangerous.

CBS New York reported that on Thursday, at the corner of Fifth Avenue and 34th Street, a man fell into a sidewalk grate. However, we know many people who have fallen into sidewalk vaults and sidewalk grates, and there is a significant difference between the two. Sidewalk grates are located in the sidewalk, away from the building, and they are usually part of ConEd's or another utility's access points. A sidewalk vault is part of the premises, which allows street-level access directly to the basement, and is often used to transport goods into the basement or trash from above. In either case, it is unlikely that someone is falling into a sidewalk vault or grate at 3PM in midtown Manhattan without there being some likelihood that the owners and/or managers of the grate or sidewalk are negligent.

In this case, the man fell 12 feet into that open sidewalk vault and hit his head, sustaining a laceration and according to a witness "bleeding all over the place." He was taken to Bellevue Hospital but according to the report, appears to be in stable condition and will recover. Others, however, may not be so lucky.

If you or a loved one has fallen into a sidewalk vault or grate and is injured, you should speak to an experienced trial lawyer to discuss your rights and potential claims. The attorneys at Feldman, Kronfeld & Beatty are available for a free consultation at (212) 425-0230 and at

Thursday, October 15, 2015

2d Judicial Department, Appellate Division Roundup: October 7, 2015 Edition

This is a particular exciting edition of the Roundup, as there are three big cases dealing with complicated issues, including one involving a multi-million dollar verdict for the plaintiffs. There are several cases having to deal with threshold and serious injuries in motor vehicle accidents, as well as a number of cases dealing with bread-and-butter litigation issues. We'll explore more, after the jump . . . 

Read more . . .

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