Many people assume – wrongly- that if a person slips, falls and is seriously injured on business property, they are entitled to collect damages.
Our Manhattan premises liability lawyers are careful to explain to potential clients that there are many considerations that must be made in weighing whether to pursue a claim. In order to collect damages, one has to show negligence. This requires a showing that defendant:
- Owed a duty to the plaintiff;
- That duty was breached;
- The injury sustained by plaintiff was proximately caused by the breach.
This may seem relatively straightforward, but there are many possible factors that can impact the plaintiff’s burden of proof threshold. Additionally, defendants can effectively ward off these lawsuits if they can show the hazard was either open or obvious (and the plaintiff failed to take evasive action to avoid it) or there was adequate warning. The extent of injuries usually doesn’t come into play as a factor until these legal hurdles have been cleared.
Still, plaintiffs should take heart that a fair number of claims do meet these criteria and proceed to trial, often with success. One example is the recent case of Topchieva v. The Lovett Company, LLC, et al., considered by the New York Supreme Court, Appellate Division, First Department.
The court was weighing an appeal from defendant on trial court’s refusal to grant summary judgment in its favor. The appellate court affirmed the lower court’s ruling, mean the case will continue to trial.
According to court records, plaintiff was injured when she slipped and fell immediately upon entering the lobby of defendant’s building, a 16-floor condominium complex in Midtown. A clear video depiction of the fall was captured by a surveillance camera and entered as evidence in the case.
One of the double glass doors in the lobby was locked, while the door through which the plaintiff entered was open, unlocked and frequently held by a doorman for pedestrians entering and exiting the building, which in this case, included the plaintiff.
It was raining that day, which would indicate the defendant knew or should have known a dangerous condition existed and taken action to address them or warn of the danger. Defendant argued that it did so by placing a mat at the threshold of the building.
However, problematically for the defense, the video clearly showed the mat was placed at the threshold of the door that was locked. Meanwhile, there was no mat placed at the entry point where pedestrians were routinely exiting and entering.
This alleged negligent placement of the mat was the reason trial court ruled – and the appellate court affirmed – genuine issues of material fact existed that precluded summary judgment in defendant’s favor. In other words, plaintiff will have her day in court.
Defendant could still argue the risk was open and obvious (if a puddle was clearly visible as plaintiff approached and failed to avoid stepping in it). Victory is not a given. However, with an experienced injury attorney, she’s got a fair shot at success on her claim.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Topchieva v. The Lovett Company, LLC, et al., New York Supreme Court, Appellate Division, First Department
More Blog Entries:
Fajardo v. Schapiro – New York Premises Liability Cases Can be Challenging, Aug. 25, 2014, Manhattan Premises Liability Lawyer Blog