In Douse v. City of New York, et.al, the plaintiff claims she tripped and fell on “a piece of metal sticking out of the concrete”. In this regard, the plaintiff stated “the first time” that she observed the piece of metal was one month after the alleged accident when she returned to the scene with her attorney. The defendant moved for summary judgment on the grounds that plaintiff could not identify what caused her fall, which was fatal to her claim. Contrary to established case law, the Supreme Court, Kings County, denied the defendant’s motion.

However, on appeal, the Second Department refused to allow the lower court to resuscitate this fatal flaw. The Second Department held that “a trier of fact would be required to base its finding of proximate cause on pure speculation” and dismissed the plaintiff’s claim.

Thanks to Edward Lomena for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00921.htm