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A man, his wife and his two children watched a concert at an indoor arena in New York City

A man, his wife and his two children watched a concert at an indoor arena in New York City on May 28, 2005. On their way out of the venue at the end of the concert, they were all coming down the stairs: the mother in front, nearest the left railing, the father right behind the mother and their two daughters behind.

The mother tripped and fell while going down the steps. She tried to grab the railing on her left but was unable to and she sustained injuries. As the wife was falling, the husband tried to reach his wife to keep her from falling but the husband also had a trip and fall on the same step. He bounced on his bottom down three or four steps of the stairs.

The man and his wife then sued the arena. During discovery, the couple testified with the aid of a Spanish interpreter. They testified that immediately after the accident the couple was in pain that they did not look at the steps of the stairway to determine exactly what caused them to trip and fall. It was only six months after the accident that the husband went back to the arena to inspect the stairs and found that the defect was a semi-circle shaped chip or wear on the concrete step.

A guard at the arena also testified that he heard the sound of someone falling and that he heard shouts but he did not see the accident
happened. He also testified that he did not inspect the steps to see if there was any dangerous condition on them. He testified that he was unsure if there was any procedure he should have followed after reporting the accident to his supervisor.

Later, as a support of their Bill of Particulars, the couple submitted the sworn affidavit of their daughter who was 14 years old at the time of the accident. She saw her mother trip and fall and she also saw her father try to catch his mother from falling and then fall at the same place her mother had fallen. She was the one who looked at the place on the top step and saw that the step was broken and chipped. She saw a part of the step indented in a semi-circle shape. She stated that she saw black tape partially covering the missing part.

The owner of the arena and the property manager moved for a summary judgment of dismissal on the ground that the couple failed to prove that they created the fault or defect or that even if they had not, that they had notice of the defect and yet failed to remedy it. They also claimed that the couple just feigned their testimony and changed their testimonies to avoid the consequences of having the case dismissed.

The Court ruled that the change in the testimony alluded to by the arena owner and the property manager are really amplifications of their earlier testimony. In their latest affidavit, they provided more details than their first affidavit but they did not change their theory of the case.

The owner of the arena and the property manager aver that the couple did not provide preliminary evidence that the chip or broken part was the proximate cause of the accident and that it did not exist at the time of the accident. The Court ruled that these questions are triable issues of fact. The motion for summary judgment is denied.

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