A New York Injury Lawyer said a man brought a legal action to recover damages for personal injury suffered by his father. The man’s father fell on the opponent’s bookstore. Allegedly due to the opponent’s negligence, the man fell (slip and fall) which resulted an open fracture on the man’s left ankle. Consequently, the man died because of unrelated cause. The man, who became the administrator of the estate of his deceased father, initiated the action after his father’s death.
The owner of the bookstore argue that the man, who did not witness the accident, cannot prove that they were negligent because his claim is based exclusively on what his father told him about the accident, which is hearsay. The man however counters all the evidence submitted by the owner of the bookstore, as it is also hearsay. In addition, certain statements attributed to the man by the owner of the bookstore are barred by the dead man’s rule. The man further argues that he should be held to the reduced standard of proof afforded by the Noseworthy doctrine.
Based on records, the Noseworthy rule in essence is that in a death case, a complainant is not held to as high a degree of proof of the cause of action as where an injured complainant can himself describe the occurrence. Further, a Manhattan Personal Injury Lawyer said the rule therefore is applied when there are no eyewitnesses to the occurrence, and the participant is incapable of testifying either because he is dead or amnesiac.
Based again on records, in a slip and fall case, a complainant must be able to demonstrate that the opponent either created the defective condition or had actual or constructive notice of it. Furthermore, to establish 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 opponent’s employees to discover and remedy it.
The man testified that he learned of the accident from his brother, who called to tell him that their father had slipped and fallen, had broken his ankle and was having surgery. The father had apparently called his other son from the bookstore to tell him about the accident. A Long Island Personal Injury Lawyer said after the surgery, the father spoke with the man, and told him he went to return a DVD, walked into the bookstore and slipped and fell. The people there called an ambulance and then put out mats so no one else would slip. As to the cause of his slip, the father told his son that it had just started to rain, that’s why the floor was wet, and he slipped. The man, who was not there and had never been in that bookstore, does not know if anyone actually witnessed his father’s accident .At the time of the accident, his father was in good health and the only medication he was taking was a blood thinner.
The bookstore general manager’s testimony is virtually irrelevant. He did not begin working at that particular bookstore, several months after the accident, so he could not testify to anything from his own personal knowledge, although he did identify two individual who witnessed the accident but are no longer employed to the bookstore. His description of the accident, based on how it was told to him by an unspecified person differs from the man. The manager also testified that the father was either trying to skip the line or get in front of somebody and he tried to like step or hop over the stanchions to get in front of someone and he tripped trying to do so. When he was helped up by the manager, he apologized and stated that he didn’t take his medication that’s why he felt dizzy. The court ordered that the owner of the bookstore’s motion to have a decision without trial and to dismiss the complaint is denied.
It is tough for any individual to prove that his accident is because of other’s negligent actions especially if no one witnessed the event. It is more agonizing on the part of the family if their love one died because of the accident. If you need help with this kind of situations, the NYC Slip and Fall Attorneys or NYC Accident Attorneys can offer legal assistance and reliable assessment of your case. If you need guidance from the NYC Personal Injury Attorneys at Stephen Bilkis and Associates, the team can accommodate your queries immediately.