A female nurse was working as an office manager of a health company.

A female nurse was working as an office manager of a health company. The health company’s office was located in a building on Lake Success, New York. The health company was the only tenant of that building. On December 21, 2000, the nurse was entering the building. She passed without incident through the first set of doors that faced the street and was crossing the vestibule to a second set of doors when her 2-inch heeled left shoed got caught on the door saddle so she suffered a trip and a fall. She claimed that the metal door saddle or threshold was uneven, cracked and raised and worn which is why she tripped on it and fell. She brought suit against the owners of the building and the owners of the building also sued the tenant, the health company which was the employer of the nurse.

In her deposition she claims to have begun working for the health company sometime in December 2000 and she has crossed the vestibule between the two doors numerous times without incident. She claims that there have been numerous complaints about the metal threshold but the Court found no evidence in the record of prior complaints about the metal threshold.

The nurse also presented a forensic engineer and accident analyst who submitted colored photos of the metal saddle. He testified that he had inspected the metal threshold on June 19, 2001 and found it defective and that the metal threshold presents a trap and a snare.

After the depositions, the building owner filed a motion to submit the case for a summary judgment of dismissal on the ground that the defect, if any is trivial and cannot be the cause for the nurse’s injury.

The Court ruled that the forensic engineer’s report was not admissible in form as it was not identified or testified to during the deposition. The report was unsworn by the forensic engineer. And the forensic engineer’s report of the defect in the metal threshold was made before the incident. It cannot be relied upon to sustain the claim that the personal injury was not trivial. It cannot be relied upon to present an issue of fact that must be tried.

The nurse asserted a new theory on how she sustained the injury in her opposition to the motion for summary judgment of dismissal. She may have tripped and fallen near the metal threshold because there was no mat in the vestibule. The nurse asserts that the issue of the absence of the mat and the issue of how the mat may have contributed to her trip and fall are issues of fact that needs to be tried as well.

The Court rejected the theory of the mat because all through the depositions and all throughout the written submissions of the nurse, particularly her bill of particulars, no mention was ever made of the mat as the cause of her trip and fall. She was specific that it was the defective metal threshold that caused her trip and fall. She cannot now be allowed to modify her theory on how she tripped and fell.

Also, the pictures of the metal threshold show that the defect caused by wear and tear on the metal threshold is too trivial to be actionable. The nurse’s own testimony in her deposition shows that she has successfully crossed the vestibule and used the two doors numerous times before and she has not ever tripped or fallen before as a result of the metal threshold. There are no reports of any similar incidents of trip and fall because of that same metal threshold.

For all these reasons, the Court granted the motion for summary judgment of dismissal of the nurse’s complaint.

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