A woman from New York City summoned a car wash company and its owner for her trip and fall accident. The plaintiff was walking toward the back of the building to get tokens to operate the car wash when the fall occurred. The verified bill of particulars alleges that the plaintiff trip and tumble due to a hazardous or dangerous concrete area adjacent to the coin machine.
The defendants move for summary judgment alleging that the plaintiff cannot identify the cause of her accident and that they did not create any condition or have actual or constructive notice of any alleged condition. In support of their motion the defendants submitted a copy of the pleadings, the deposition testimony of the plaintiff, and the deposition testimony of defendant.
Records revealed that the plaintiff testified in relevant part, that she had driven her car to the car wash after visiting a friend, and that earlier in the day, she had been to physical therapy for an injury she sustained to her left leg from a previous fall. She explained that she had been going to physical therapy for approximately six months and that for about a two-month period, she had used a cane for support. The plaintiff further testified that after arriving at the car wash she pulled into one of the bays, got out of her car taking her money and her keys, and started walking to get tokens. The plaintiff stated that she never made it to the token machine because she fell. When the plaintiff was asked what caused her to fall, she responded that she wasn’t sure. When the plaintiff was then asked if her feet were located on the asphalt of the parking lot or on the concrete sidewalk, the plaintiff responded that she guessed so. However, when further questioned about the location of her left foot at the time of her fall, the plaintiff indicated that she was guessing, and that she was not really sure.
According to the reports, the plaintiff was asked if she slipped or tripped. The plaintiff stated that as far as she knows, she just fell and she is not sure if she tripped or slipped. The plaintiff was again asked where her feet were when she fell. The plaintiff answered that it was so quick and it was hard to say. In addition, the plaintiff was asked if she knew whether either of her feet became caught on anything, and she answered no. Later, when the plaintiff was questioned as to whether it was her left foot or right foot that caused her to fall she responded that she guessed it must have been her left foot. The plaintiff also testified that she never saw anyone else fell at the car wash, and that she never made any complaints about the area when she was previously at the car wash.
Lastly, the defendants point to the deposition testimony that he was responsible for maintaining the premises; he was at the car wash five or six days a week; he had no knowledge of an alleged crack in the sidewalk where the sidewalk meets the first bay; he first became aware of the plaintiff’s accident when he was served with summons in ten years of reviewing surveillance video, he never observed anyone falling on the sidewalk towards the back of the building; and prior to the incident now, no one had informed him that they fell towards the area of the coin machines.
The defendants argue that plaintiffs own testimony establishes that she is unable to identify what caused her to fall, that she is unable to identify which one of her feet caused the fall, and that she has no knowledge as to whether she tripped or slipped. As a consequence, contend the defendants, the plaintiff’s testimony as to how she fell would be a complete assumption.
The plaintiff opposes the defendants’ motion, and submits in opposition, her affidavit, her attorney’s affirmation, her deposition testimony, photographs of the car wash, and the deposition testimony of defendant. In her affidavit, the plaintiff alleges that at her deposition she testified that she was not sure what caused her fall, she was never questioned further as to when she wasn’t sure or if she ever learned what caused her to fall. She alleges that at the time of her fall she was not sure of the cause, but that after her fall, she was able to see the cause when she rolled over and noticed a cracked and broken portion of the sidewalk where her right foot had been. She further points to a photograph upon which she had marked with an indicating where her right foot had been before the fall. The plaintiff additionally states that although at her deposition she testified that she did not know if her foot got caught on anything, she does know that her right foot came into contact with the defective area and that contact caused her to fall. Furthermore, alleges the plaintiff, her left foot was by the asphalt as it comes up and meets the sidewalk, and such area was miss-leveled and uneven. She contends that her left foot was on this miss-leveled area and then she stepped with her right foot into the cracked sidewalk area, and fell to the ground.
The plaintiff’s attorney argues in his affirmation that the plaintiff cannot be blamed for defense counsel’s questioning techniques and that the plaintiff’s affidavit is necessary in this case to uncover facts that escaped her deposition testimony. The plaintiff’s attorney maintains that simply because the plaintiff cannot differentiate between a slip and a trip does not absolve the defendants from liability, and that the legal distinction between a slip and trip is not easily understood by the general public. He also contends that the plaintiff has stated clearly in her affidavit that her right foot came into contact with the defect in the sidewalk causing her fall. He alleges that the fact that the plaintiff could not identify at her deposition the cause of her fall is irrelevant based upon the facts of this case.
The plaintiff also points to the defendant’s deposition testimony wherein he testified to the effect that since he purchased the property neither he nor anyone else has done any concrete or asphalt work. The plaintiff further highlights that he was on site almost every day and upon being shown photographs of the car wash he stated that the photographs depicted how the area look. The plaintiff claims that the areas in the photographs have remained in the same condition for at least one full year prior to her fall. The plaintiff additionally contends that defendants were not only in the position to readily observe the hazardous conditions as they existed on the sidewalk concrete and asphalt, but defendants were also duty-bound to keep the area in a state of safe repair. The plaintiff also alleges that the defendants have failed to come forward with proof of when the premises were last inspected and that no evidence of a hazard existed.
Accordingly, the defendants’ motion for summary judgment dismissing the complaint against him and his car wash company is granted.
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