SUMMARY JUDGMENT OF DISMISSAL GRANTED TO DEFENDANT IN TRIP-AND-FALL ON POCKETBOOK STRAP IN AISLE OF AIRPLANE; NO EVIDENCE OF WHOSE POCKETBOOK IT WAS

Court: Supreme Court, Putnam County, New York

Case: Linda Lofaro v. Jennifer Grogan, as Administratrix of the Estate of Wynona Penfold

Date: Feb. 9, 2012

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

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LEWIS JAY LUBELL, J.

Plaintiff, Linda Lofaro, brings this action for personal injuries arising out of a November 30, 2004, trip and fall. While traversing the aisle of a commercial passenger airplane preparing for departure at Stewart International Airport in New Windsor, New York, plaintiff's foot allegedly got caught in the strap of defendant decedent's pocketbook that had been placed in front of seat "5" and under seat "4", the seat immediately in front of seat "5".

Defendant, Jennifer Grogan, as Administratrix of the Estate of Wyonna Penfold, moves for summary judgment (CPLR Sec. 3212) dismissing the action upon the grounds that plaintiff cannot identify how the alleged dangerous condition constituted the proximate cause of the accident and for lack of evidence that defendant's decedent created the alleged dangerous condition.

Contrary to defendant's position, plaintiff clearly identified the cause of her fall, the strap to a pocketbook that had been placed in front of seat "5" and under seat "4." It is of no consequence that plaintiff identified the cause of her fall only after she tripped and fell. Similarly, it does not matter that she could not precisely articulate the mechanics of how the strap got caught on her foot.

Plaintiff's deposition testimony in that regard is materially distinguishable from that in Curran v. Esposito (308 A.D.2d 428, 429, 764 N.Y.S.2d 209 [2d Dept.2003]), upon which defendant relies. Plaintiff therein "testified that her foot became caught on something at the top of the staircase, but she did not know what it was .... [and] could not remember which foot became caught; she thought it was her toe that became caught, although she testified that she was wearing slippers" (Curran v. Esposito, supra, at 429). This case is also distinguishable from Aguilar v. Anthony (80 AD3d 544, 545, 915 N.Y.S.2d 284 [2d Dept., 2011]), upon which defendant also relies. Here, unlike Aguilar v. Anthony, supra, the jury will not have to speculate as to the cause of plaintiff's fall, although it is always free to reject plaintiff's testimony regarding same.

The Court does find, however, that defendant has come forward in the first instance with a sufficient showing that the jury would need to speculate as to defendant's decedent's ownership and/or possession and control over the offending pocketbook and, even upon such a showing, that defendant's decedent had placed the pocketbook's strap in such as position as to have caused the accident (Aguilar v. Anthony, supra at 545). The Court further finds that, in response to defendant's prima facie showing, plaintiff has failed to raise a triable issue of fact by the submission of proof in admissible form (id.).

Plaintiff's reliance on Noseworthy v. City of New York (298 N.Y. 76, 80 N.E.2d 744 [1948]) is misplaced. The Noseworthy Doctrine reduces the burden of proof on a plaintiff who is unable to describe the events in question due to death or disability occasioned by a defendant's act (Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 333, 493 N.E.2d 920, 923 [1986] ). While Noseworthy does not actually reduce the standard or quantum of proof, which continues to be proof by a preponderance of the credible evidence, it does operate as to the weight that may be assigned to circumstantial evidence adduced about disputed facts due to the fact that the more direct and proper source of such evidence is no longer in existence (Holiday v. Huntington Hosp., 164 A.D.2d 424, 428, 563 N.Y.S.2d 444, 446 [2d Dept., 1990]).

The rule is intended to avoid unfairness to a plaintiff who ... cannot testify to the event, [and] might otherwise be prejudiced by an instruction to the jury that it may draw the strongest inferences against a party who fails to testify or who withholds evidence ... It is also based, at least in part, on the belief that since the plaintiff is not able to testify, it is unfair to permit defendant to stand mute and defeat the claim (see, Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744) ...

(Sawyer v. Dreis & Krump Mfg. Co., supra at pp. 333-334).

Here, it is a defendant who is not available; not a plaintiff due to the allegedly negligence of a defendant. As such, the Noseworthy Doctrine is not applicable.

The fact that defendant's decedent had not been deposed because she died during the course of litigation is to no avail and, in any event, does not implicate Noseworthy. Plaintiff's reliance on Cole v. Swagler (308 N.Y. 325, 329, 125 N.E.2d 592, 594 [1955]) is also misplaced.

In Cole v. Swagler, supra, both parties' intestates died as a result of the same accident underlying the action. With no eyewitnesses to be found and only circumstantial evidence available to the jury to reconstruct the circumstances surrounding the accident, the Court deemed the Noseworthy Doctrine applicable notwithstanding the death of the defendant's intestate. Defendant's suggestion that Cole v. Swagler, supra, somehow turns the Noseworthy Doctrine on its head so as to apply to a case where, as here, plaintiff is still alive and well and the defendant is not due to circumstances unrelated to the underlying accident, is rejected by the Court. This is especially so since there is no indication that there were no other witnesses to the alleged event who are not currently available for any reason.

Upon reaching its determination, the Court has not considered the airline's unsworn accident report seemingly prepared and signed by an airline employee (Rue v. Stokes, 191 A.D.2d 245, 246-47, 594 N.Y.S.2d 749, 751 [1st Dept., 1993][unsworn reports do not constitute evidentiary proof in admissible form and, as such, may not be considered in opposition to a motion for summary judgment]). In any event, although defendant's decedent is therein listed as a "witness", the "explanation of incident" portion of the form merely reads, "While boarding ... [injured party] tripped over a lady's handbag ...". Likewise, the cause of accident portion recites, "Tripped over [passenger] bag not completely stowed at time of boarding." Nowhere does either narrative connect the handbag to defendant's decedent, nor does it or any other evidence currently before the Court identify defendant's decedent's seat on the airplane.

Finally, upon reaching its determination, the Court has rejected plaintiff's request that the Court take judicial notice that a person sitting in an airplane stores his or her items under the seats in front of them. The Court is not satisfied that the matter sought to be judicially noticed is "of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain ... [and possessing] sufficient notoriety ... to make it proper to assume its existence without proof" (Ecco High Frequency Corp. v. Amtorg Trading Corp., 81 N.Y.S.2d 610, 617 [Sup.Ct. N.Y. Cty, 1948, affd 274 A.D. 982, 85 N.Y.S.2d 304 [1st Dept., 1948]; see also, Dollas v. W.R. Grace & Co., 225 A.D.2d 319, 320, 639 N.Y.S.2d 323, 324 [1st Dept., 1996]). Even if such were the case, the Court would be remiss in applying the requested judicially noticed fact to circumstances where, as here, the accident takes place while passengers are still boarding since, just as likely, one could take judicial notice of the fact that passengers do, at times, occupy the wrong seat upon boarding and, in any event, the boarding process is hardly a time of orderly passage, due to the stowing of personal items and the like.

Based upon the foregoing, it is hereby

ORDERED, that defendant's motion to dismiss the action be and is hereby granted.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

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