On January 2007, a woman was ascending in a stairway between fourth and fifth floor in the defendant’s building when she stepped on a loosed and cracked marble stair. It tread on half, bent up and fell off, that causes to twist her right ankle and strike her left knee. She left the area where it had fallen and continued up the stairs to her friend’s apartment and stayed until around 5:00 am. She then went back to her own apartment and uses a different set of stairs, changed clothes and went directly to a resort with another friend. Approximately 10 days later, she called an ambulance to take her to the hospital and treat her ankle. Two or three months later, she began to notice a problem of buckling in her left knee and sought treatment for the said condition.
As a result of her injury, the woman alleged in her formal statement that the defendant had actual and public notice for about six months prior to the incident. In the said notice it states that the marble top piece or portion from the step of said premises was caused or allowed to become disengaged from the rest of the step, rendering said step dangerous and hazardous.
After the plaintiff woman certified the Court that the case is ready for trial, the defendant made the instant motion requesting to dismiss the action for lack of any evidence to show the defendant had actual knowledge of the alleged defective condition.
Based on records, request for case dismissal is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment. A party opposing a motion for it must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact. To establish a legitimate case of negligence in a trip and fall case, a plaintiff must prove the defendant had actual or public notice of the dangerous or defective condition and sufficient time within the exercise of reasonable care to correct or warn about its existence. Constructive notice can be established if there is evidence the defect was visible and apparent and in that condition for a sufficient length of time that the defendant is presumed to have seen it or was negligent in failing to see it.
In support of the motion, the defendant offered the pleadings, the plaintiff’s formal statement, her deposition testimony, the deposition testimony and an affidavit of building manager. The Plaintiff said that when her right foot hit the step, it loose, cracked and fell off. She used the subject staircase everyday and never noticed a crack on that before or on that particular step. She could not say she had ever had problems walking up that particular portion of staircase before. She testified that there were a lot of loose stairs all over the building. She never complained about it prior to her accident and was unaware of anyone else making complaints. She had never seen repairs being made to any stair in the building. On Sunday, after plaintiff returned from the resort, she told the superintendent about the broken step and showed it to him. Someone had put the loose piece back, but it was still loose and she never saw anyone repairing it.
About 10 days after her fall, the building manager from the management company came to plaintiff’s apartment with the superintendent to ask about the stairs. The Plaintiff went with them, pointed to the stairs, and went back to her apartment. The photographs of the subject staircase shown to plaintiff at the deposition were of the stair, apparently repaired, showing it intact. Plaintiff testified she had her own photographs of the stair in its broken condition.
The building manager testified that he was at the service at the time of the plaintiff’s accident and had been the building manager for about 15 years. He visited the building about once a month or more, if needed, to respond to tenants’ complaints.He learned about the accident from her attorney and went over the building with the superintendent on February 2007. He asked her to show him the broken stair and she only pointed to a set of stairs. He told her they all looked perfectly fine and she said that’s where she fell. When he asked which step was the one, she became agitated and went back to her apartment.
The building manager had his camera phone and took a video of the steps she pointed to. He asked the superintendent if there were any broken stairs and he said none. He also asked if the superintendent had received any complaints about that staircase before the date of plaintiff’s accident and he said none. Any repairs to the steps were normally done by the superintendent because the repair was fairly straightforward; the marble steps were purchased pre-cut and could be slid right into the angle iron supports. He agreed to consult his records for invoices showing replacements of steps and repairs made.
In opposition to the motion, the plaintiff offered her own affidavit, the affidavit and report of a professional engineer. The plaintiff stated on that when she stepped down on the stair it was loose and cracked in half. During the five years she resided in the building before her accident, she estimated that 20 to 25 of the steps were loose and that this condition existed since 2007. She never observed the building superintendent conducting any repairs on the steps.
The professional engineer reviewed the plaintiff’s formal statement, her affidavit dated October 2009 and several photographs of the stairway taken after repairs were made. He stated that a loose step that suddenly shifts is a latent condition that can be considered a trap since its presence is undetectable and unrealized until the tread is actually stepped upon. Numerous loose treads, however, are evidence of either poor maintenance or improperly placed treads and, thus, a recurring condition that should have been investigated by the building’s owner.
The Plaintiff’s submissions in opposition did not make an issue of fact for trial. Her affidavit stating various loose steps in the building since 2007 did not provide evidence of a recurring condition that existed prior to her accident or a basis by which a jury could find constructive notice. The number of loose steps plaintiff observed in the two years following her accident could not constitute evidence of prior notice to the defendant.
The professional engineer’s opinion that the stairway was improperly maintained did not create an issue of fact for trial. The expert did not examine the stairs themselves, did not read plaintiff’s deposition testimony and only examined photographs of the stairs showing them to be in apparently good repair. He did not include the photographs with his affidavit or give the date they were taken. His opinion about the number of loose stairs reported by plaintiff showed evidence of poor maintenance or poor placement is not relevant to the issue of notice since plaintiff stated that this condition was in existence since 2007. The Supreme Court properly dismissed this claim.
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