Does that exist, a simple slip and fall case? No, they do not exist. The simple slip and fall cases are dismissed, see
Priola v Herrill Bowling Corp. ( 2017 NY Slip Op 04157)
decided on May 24, 2017. "In a premises liability case such as this, involving a slip and fall allegedly caused by a dangerous condition, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation (
see Singh v City of New York, 136 AD3d 641
, 642; Rivera v J. Nazzaro Partnership, L.P., 122 AD3d 826, 827)
Slip and Fall cases that are tried in the Bronx, Brooklyn and Queens present challenges for the defense that must be deftly addressed at trial. Consider a May 2017 trial we were involved in, that was tried in Kings County. The plaintiff, an 80 year old pedestrian at the time of trial, fell in a church parking lot. She claimed an emergency cervical fusion and a subsequent lumbar fusion were all related to the fall. Whether you are arguing the defect was trivial or "open and obvious", defense counsel must realize in City venues a jury is predisposed to find against the landowner, especially the owner of commercial buildings.
On cross-examination of a sympathetic plaintiff, defense counsel wins no points with a frontal attack. Remember Sun Tzu's, The Art of War, "Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting." A subtle jab on credibility at the onset will set the stage for important questions later. In this case, we elicited the following when the plaintiff was challenged with an inconsistent statement from her prior deposition testimony.
Q. Did you give that testimony under oath back in October of 2013?
A. I may have some confusion, yes.
Q. Was this testimony that you gave back in October of 2013 true?
A. I may have given it.
Q. Was it true, my question is?
A. No, it wasn't true.
The best you can hope for on most cases is a split decision on liability with as much comparative negligence as you can place on the plaintiff. With an open and obvious defect, your argument to the jury is that any reasonable person, through the proper use of their senses, would have observed the defect and avoided it. The goal of your cross-examination is admissions by the plaintiff of the failure to use reasonable care. See below important admissions on cross examination.
Q. You testified on direct examination that you took two steps and then you fell, correct?
A. That's what I thought it was, two steps, but it's more.
Q. And you never saw the area on the ground before the accident, before you fell, correct?
A. No, never did.
Q. And you never looked at the ground before you walked, correct?
Q. And is it fair to say that you did not know what caused you to fall?
The Court will instruct the jury from Pattern Jury Instructions § 2:90 Possessor's Liability for Condition or Use of Premises-Standard of Care
. "In order to recover, the plaintiff, must prove: (1) that the premises were not reasonably safe; (2) that the defendant, was negligent in not keeping the premises in a reasonably safe condition; and (3) that the defendant's negligence in allowing the unsafe condition to exist was a substantial factor in causing the plaintiff's injury."
Your theme at trial must follow the jury instructions. "You must first consider whether the premises were reasonably safe....If you decide that the premises were reasonably safe, you will find for defendant and proceed no further. If you decide that the premises were not reasonably safe, you will proceed to consider whether defendant was negligent in permitting the unsafe condition to exist. Negligence is the failure to use reasonable care. Reasonable care means that degree of care that a reasonably prudent owner would use under the same circumstances, taking into account the foreseeable risk of injury."
If you wait for the Judge to read this charge at the end of the case, the jury will gloss over it. You need to explain it in openings, use it during the cross examination, and explain it again in closing statements. Emphasize "Reasonably Safe" as much as you can. Elicit testimony of the thousands of people who passed the same location without incident. Hopefully the jury will see the problem as the careless plaintiff, failing to use "reasonable care".
Read the transcript