The New York Appellate Division, Second Department recently held that in a slip-and-fall case, the plaintiff’s inability to identify the cause of the fall is fatal to the case because any finding of negligence and its causal connection to the injury would be based on speculation.
At his deposition, the plaintiff was asked if he slipped because the step was slippery or because of a crack in the step. The plaintiff responded, “I really wouldn’t know to tell you. I just put my foot forward and stepped on something and I flew in the air. So, I don’t recall seeing or feeling anything.” When the plaintiff was asked whether his right foot ever touched the second step, he replied, “I don’t know exactly. I don’t recall what happened. I think it did. I don’t know.”
The Court reasoned that because it is just as likely that the accident could have been caused by some other factor, any determination by the trier of fact as to the cause of the accident would be based upon guesswork. The Court further dismissed the plaintiff’s expert engineer’s report which alleged there were unsafe conditions in the staircase where the fall occurred since plaintiff failed to present any evidence connecting these alleged violations to the fall/injuries.
Rajwan v. 109.23 Owners Corp., 2011 NY Slip Op. 02649, 82 Ad3D 1199 (2d Dept 2011)