A woman visited her dentist at 8:45 a.m. on July 31, 2006. Her dentist holds office in a building on South Oyster Bay Road I Hicksville, New York. As she was walking on the sidewalk outside the building, she tripped and fell because a sidewalk flag was raised and this caused her to trip and fall.
She filed a suit in damages against the owner of the building. In her deposition, she stated that as she was walking on the sidewalk, her foot hit something and she fell. After she fell, she saw that raised sidewalk flag for the very first time. She had been going to the same dentist for fifteen years and goes to see him twice every year for her dental check-up. She has never seen the raised sidewalk flag prior to the incident and she has never complained to anyone in the building after the July 31, 2006 incident.
After discovery, the building owner and the building manager filed a motion for summary judgment asking that the complaint be dismissed. They aver that the lady had not offered preliminary evidence that the building owner or manager had created the defect; or that, even if they had not created the defect, they have known it for a reasonable amount of time but have not done their duty to repair the defect. They assert that the lady had not given preliminary evidence of any negligence on their part and so the complaint should be dismissed.
To support their motion, the building manager testified in her deposition that part of her duty was to inspect the sidewalk in front of the building once every month. She has never observed any raised sidewalk flag before. She has never received any complaints about any person tripping on the sidewalk in front of the building. She has never requested for the sidewalk to be repaired.
Aside from the building manager who conducted monthly inspections, the floating superintendent of the building’s managing agent also testified that he and another employee performed daily inspections of the building, the premises and the sidewalk in front of the building.
The injured lady insists that the building owner must have had knowledge of the condition of the sidewalk since they inspected the premises regularly but they have done nothing about it. She says that the issue of whether or not the building owner and building manager had notice of the defect in the sidewalk is an issue which needs to be tried. Also, the issue of whether or not the employees who were tasked to inspect the sidewalk and the premises actually conducted the inspection without negligence is also an issue which must be tried.
The lady who tripped and fell presented an affidavit of a professional engineer. He stated that after examining the photographs taken of the sidewalk, he opined that the sidewalk flag was raised 1 1/8 inch. He gave the opinion that a sidewalk flag raised at ½ inch is already a tripping hazard. He opined that the defect existed for months or years prior to the lady’s accident.
The photos attached by the lady were taken on October 12, 2006. The lady asserts that the issue of the height of the raised sidewalk flag, how long it has been raised and if it is visible are all issues that a jury must try.
In denying the motion for summary judgment, the Supreme Court held that the building owner and the building manager had the duty to maintain the property in a safe condition. It the owner of the property finds a dangerous condition that is not readily visible or observable with the senses, he has a duty to warn others. There is no duty to warn others when the defect is an open and obvious condition which is not inherently dangerous. If the defect or hazard is open and obvious, it does not eliminate a claim that the presence of the hazardous condition violates the property owner’s duty to maintain the premises in a reasonably safe condition. This is an issue which only a jury can determine.
The building owner and the building manager maintain that even if there is a defect on the sidewalk in front of their building, the defect is too trivial to be actionable. Again, whether or not the defect is trivial is also a question that the jury must determine.
The defendants here have not met their burden to establish that they maintained the property in a reasonably safe condition and that it neither created nor had notice of the dangerous condition. The injured lady, however, has met her burden to prove that there are issues of fact that must yet be tried. The motion for summary judgment is denied.
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