(914) 220-1086The New York Supreme Court, Appellate Division, Second Department reversed a trial court order that granted summary judgment to a defendant property owner in a slip-and-fall case that happened in a New York apartment.
In 2010, the victim, now deceased, was walking through his apartment when he tripped on the wood floor and fell. He sustained head injuries from his fall. It was not until 2013 that this case was brought for personal injuries by the victim’s son, the executor of the estate.
In his deposition testimony, the son testified that he was at the victim’s house at the time of the fall and saw the actual fall. He said he was walking behind his father on the wood floors. The flooring was warped and bowed and had been that way for some time. In fact, the father had been making ongoing complaints about this since 2001. The victim’s foot went down in a spot where the flooring was warped, and he fell at an angle, hitting his head. The defense filed a motion for summary judgment.
In a premises liability case, the plaintiff has the burden to prove three things: (1) the cause of the injury, (2) that the cause of the injury was a dangerous condition or a defect, and (3) that the dangerous condition or defect was either caused by the defendant or the defendant had notice of its existence.
The defense first argued that the plaintiff failed to identify the cause of the injury without using speculation, and the Supreme Court accepted this argument. However, this was in error. The plaintiff’s testimony about how the dip in the floor caused his father to trip was sufficient to identify the source of the fall.
The defense then argued it did not have notice of the alleged defect. However, the plaintiff’s testimony that both he and his father had complained several times before the accident about the warped floors was sufficient evidence to rebut this argument.
Finally, the defense argued that the defect had not caused the alleged injury. A defendant is the proximate cause of an injury when his negligence has been proved by the plaintiff to have been a substantial factor in causing the injury. Here, the plaintiff would have to prove the landlord’s failure to fix the warped and bowed flooring was a substantial factor in causing the victim’s fall after tripping on the warped flooring.
There can be multiple proximate causes. The landlord’s failure to fix the flooring could be one and the plaintiff texting and not looking where he’s walking may be another. If only one proximate cause could possibly exist for the fall, and that proximate cause is the plaintiff’s own doing, then summary judgment for the defendant is proper. However, if the plaintiff proffers with sufficient evidence that the defendant is a proximate cause of the fall, then the jury should decide who is at fault and assess any damages.
The landlord here failed to establish that it was not a proximate cause of the injuries. The medical records included in discovery showed the victim suffered a subdural hematoma after the fall. The defendant tried to argue that because (1) the victim had tried to sue the landlord three times, twice for unrelated trip-and-fall accidents and once for debris falling on his head and (2) the victim waited two months to see a doctor about the head trauma, the cause of the head injury came from a different accident.
However, in order to prove he is entitled to summary judgment as a matter of law, a defendant must submit expert medical evidence that the specific head trauma was not caused by the fall. The defendant here failed to include an expert medical witness’s testimony. As such, the trial court’s order granting the defense summary judgment motion was reversed.
If you or a loved one has suffered a devastating injury after a slip-and-fall, you have options. Contact the experienced personal injury lawyers at the Law Offices of Thomas L. Gallivan, PLLC today to review your potential claims.
Martino v. Patmar Props., Inc., 123 AD3d 890 (2nd Dept. 2014).
