On October 20, 2006 at approximately 11:30 p.m., a man allegedly slipped and fell (slip and fall) at the Chalet in New York. In the Bill of Particulars, the man alleges that he slipped and fell on a wet deck that was covered with leaves and the portion of decking that the man walked upon gave way due to rot and the man’s right foot went through the decking and his left foot slipped on the leaves and he fell forward down two flights of steps.
The man alleges that the hazardous and dangerous conditions was that the two small steps exiting the restaurant created a tripping hazard for pedestrians, the threshold was steeply sloped and worn, the handrail was not usable and consisted of a wide board that was impossible to grab, and the carpet pad on the wood deck and the presence of wet leaves created a slippery surface.
The man testified at his examination-before-trial. A New York Personal Injury Lawyer said he executed a misstatement sheet on which he made various changes to his examination-before-trial transcript. He submitted an affidavit setting forth a generalized statement of the reason for the changes to the transcript.
Notably, the man never changed any of his testimony with regard to his claim that his foot went through decking, and that he slipped on wet leaves. The man only changed that portion of his original testimony wherein he denied that his accident occurred while stepping outside the door onto the deck and instead indicated that he was standing on the deck for five minutes when his foot went through the deck and then he slipped and fall on leaves.
The man seek summary judgment on the grounds that they had no notice of the alleged wet leaves and rotting wood on the upper level of its deck, and also upon the video surveillance footage depicting the specific manner in which the accident occurred. A Long Island Personal Injury Lawyer said the accused parties assert that the video footage completely contradicts the man’s claim as far as the alleged presence of a rotting deck and wet leaves causing his slip and fall.
In addition to the video surveillance tape, the accused rely upon the transcripts of testimony of the man and his wife, a dentist who knew the man as a colleague for over 20 years and the sole shareholder of the company which owns the Chalet Restaurant. At his examination-before-trial, the shareholder testified, in pertinent part, that prior to the incident no person had ever fallen in the area. Thousands of persons would have exited the upper level door to the upper level deck since the shareholder purchased the restaurant and the property. The company received no complaints about the step down. He is aware that the man is alleging to have slipped on wet leaves and fallen because of rotting wood on the deck. However, prior to the man’s accident he had never been aware of any problems with leaves being present in the area, nor any rotting wood nor discovered any such rotting on the deck since the accident up until the present. After the accident occurred, the company also never observed the presence of any rotting wood or wet leaves on the deck that could have caused the man to fall. The shareholder asserts that the foregoing is completely supported by the videotape of the accident showing the man to have fallen simply because his right leg gave out with no evidence of wet leaves and/or rotting deck having caused the man’s accident.
The shareholder did not witness the man’s accident. However, the whole accident was caught on infrared video maintained at the restaurant in the regular course of business, which was saved by the company after the accident and is annexed to the motion. There were numerous cameras placed in the restaurant for security purposes. The tape is digitally stored and recorded over once a month. He, however, maintained a copy of the recording of the accident. The cameras are night vision cameras with cameras recording all day on detection of motion. There was one camera specifically in the area of the accident by the exterior door.
The Chalet argues that the video footage depicting the entire accident as it occurred establishes that the man’s accident occurred as his right foot came through the doorway and down onto a mat on the deck, with the right foot then giving out thereby causing him to slip and fall. The man had undergone surgery on his hip two months prior to the accident. A Manhattan Personal Injury Lawyer said regardless of the actual cause for the man’s right leg giving out, the video tape shows the man did not slip on wet leaves and he did not slip and fall because his feet went through a rotting deck.
The videotape also refutes the testimony as well as the claims made by the man, his wife and the dentist that they were caused to slip and fall on the deck as well. The dentist testified that the deck cracked and/or that there was a dip in the deck which could have caused the man to have fallen.
In opposition to the accused parties’ motion, the man argues that conflicts between the misstatement sheet changes and the original deposition testimony raise an issue of credibility that cannot be resolved on a motion for summary judgment. The man further asserts that notice of the defective condition is not a prerequisite to establish liability on behalf of a property owner as it has a non-delegable duty to maintain the premises in a reasonable safe condition.
The man also relies upon a belatedly served expert disclosure and Second Supplemental Bill of Particulars which allege new theories of negligence against the accused parties. As noted the documents were served after the Note of Issue was filed.
Although leave to amend a pleading ‘shall be freely given in the absence of surprise or prejudice, the determination whether to grant such leave is within the court’s discretion, and the exercise of that discretion will not be lightly disturbed. Where the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discreet, circumspect, prudent and cautious.
The man’s unreasonable delay in seeking leave, as well as the absence of an excuse for the delay, warrants denial of leave to serve a Second Supplemental Bill of Particulars alleging a new theory of negligence, after the Note of Issue has been filed.
The new theory of negligence includes that the accused created a defective condition in that the subject doorway and stairway violated several sections of the Building Code of New York State, the two small steps exiting the premises created a tripping hazard for pedestrians; and a handrail was not usable and impossible to grasp.
While modern practice permits a complainant to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the man’s submission. As noted the new theory was alleged for the first time in opposition to the accused parties’ motion.
The Court addresses the merits of the accused parties’ motion for summary judgment. It is well settled that an accused who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.
To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the accused parties’ employees to discover and remedy it.
In view of the foregoing, the accused parties’ motion for summary judgment is denied, the motion to preclude is granted, and the man’s cross-motion for leave to serve a Second Supplemental Bill of Particulars is denied.
Public places should always be safe in every aspect. If you experienced otherwise, you can seek the services of Nassau Slip and Fall Attorneys to work hand-in-hand with Nassau Personal Injury Lawyers. Stephen Bilkis and Associates lawyers can also provide you with assistance if you lost your loved ones due to other people’s negligence through its team of Nassau Wrongful Death Attorneys.