This week, the Appellate Division, First Department, reversed the lower court’s decision which granted summary judgment in favor the defendants in Taveras v. 1149 Webster Realty, 2015 Slip Op 09192. Plaintiff alleged that as he was exiting a convenience store he tripped and fell, sustaining personal injuries. Plaintiff commenced suit against the property owner and lessee of the premises.

The defendants moved for summary judgment to the lower court arguing that plaintiff was unable to identify the cause of his fall and thus any determination as to what caused the incident would be based on mere speculation. The lower court agreed granting the motions and dismissing the case.

On appeal, the Court determined that plaintiff’s testimony as to the cause of the incident was sufficient to determine what caused his fall. Plaintiff was deposed on two separate occasions. During his first testimony he was shown a photograph that showed only a portion of the exit ramp where plaintiff allegedly fell. During that deposition, plaintiff testified that he could not specifically identify where or what caused him to fall.

During plaintiff’s second deposition, he was shown photographs that depicted the entire area including the ramp and exit door plaintiff used to exit the premises. At that time, plaintiff was able to mark on the photograph where he fell. Additionally, on both occasions plaintiff testified that he “stepped on something” “like a hole” on his way out. Although this testimony is vague and does not point to a specific defect, the Appellate Division found the testimony along with plaintiff’s ability to mark where he fell in the photographs sufficient to show where plaintiff’s incident occurred and what caused it.

This decision eases plaintiff’s burden of showing what caused the incident and where, allowing vague testimony and a second shot at identifying the accident location sufficient to create a triable issue of fact to defeat defendant’s summary judgment motions.

Two of the Justices dissented arguing that even with plaintiff’s testimony and the photographs from the second deposition, plaintiff could not definitely state what caused the fall and any conclusion remained speculative. The plurality opinion shows that this issue is on the forefront of premises liability cases and we can expect further Appellate review of these issues.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.