ACCIDENT VICTIM WHO CAN'T SAY WHY OR WHERE SHE FELL LOSES TO DEFENSE SUMMARY JUDGMENT MOTION

Case: Smith v. The City of New York

Court: Supreme Court, Appellate Division, First Department, New York

Date: January 10, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens accident lawyer)

Comment: This is, unfortunately, nothing new. If an accident victim can't say what caused them to fall, they're out of court. Here, case is dismissed and summary judgment is granted in favor of the defense

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Order, Supreme Court, New York County (Karen Smith, J.), entered May 12, 2010, which granted defendants' motions for summary judgment dismissing the complaint and all cross claims, and denied plaintiff's cross motion for summary judgment on the issue of liability, and order, same court (Geoffrey D. Wright, J.), entered April 14, 2011, which granted plaintiff's motion to renew and reargue her cross motion and adhered to the prior decision, unanimously affirmed, without costs.

Plaintiff testified at her deposition that she had "no idea" how she tripped and fell and she could not identify or mark on photographs the specific rise, declivity or defective condition of the sidewalk that caused her accident. She stated that she did not feel her foot go into a depression, catch or strike anything, slip, or slide. Citing this testimony, defendants sustained their burden of demonstrating entitlement to summary judgment as a matter of law because a jury would have to engage in impermissible speculation to determine the cause of the accident (see Siegel v. City of New York, 86 AD3d 452, 454-455 [2011]; Fishman v Westminster House Owners, Inc., 24 AD3d 394 [2005]; Rudner v. New York Presbyt. Hosp., 42 AD3d 357, 358 [2007] ).

The doctrine of res ipsa loquitur, which requires a showing that the event is the kind which ordinarily does not occur in the absence of someone's negligence, was caused by an agency or instrumentality within the exclusive control of defendant, and was not due to any voluntary action or contribution on the part of the plaintiff (see Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226 [1986]), is inapplicable here because it is not uncommon for trips and falls to occur without negligence where there is a misstep or loss of balance, and because the area where the accident occurred was not in the exclusive control of any defendant.

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