Cases Involving Plaintiffs Who Fall into Interior Trap Doors in a Store
Recently I handled a case involving a person who was on a job interview at a deli . She was instructed and told to walk behind the counter by the register. Unknown to her a worker opened a floor door , commonly known as a trap door behind the counter. When the person being interviewed took a few steps back she fell into the basement sustaining serious injuries. Due to our prompt investigation, we were able to secure a written statement by an employee present at the time of the accident, which blamed the deli for not warning the interviewee of the open floor door. The defense argued that she was an employee even though she did not actually get paid or start working, claiming that she was relegated to a workers compensation claim.. Under New York law , Liability in a slip and fall case requires proof of a dangerous condition and the defendant's actual or constructive knowledge of that condition prior to the fall (see, e.g.,Fasolino v. Charming Stores, 77 N.Y.2d 847). Hearsay evidence may be sufficient to demonstrate the existence of a triable fact where it is not the only evidence submitted (see, Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99, 100; Koren v. Weihs, 201 A.D.2d 268, 269). A store manager's statement is admissible on the issue of whether a defendant store had actual knowledge of an allegedly hazardous condition (Carpenter v. D'Agostino Supermarkets, 270 A.D.2d 51). In Navado v 250 Willis Ave. S. , 735 N.Y.S. 2d 32 ( N.Y. App. Div. 2002 ( 1st Dept. 2002), the plaintiff and her neighbor both overheard the manager advising the porter that he should have cleaned up the spill earlier, evidencing actual knowledge prior to the accident. A manager has the authority to bind its employer by an admission made as agent on behalf of the employer (see, e.g.,Bransfield v. Grand Union Co., 24 A.D.2d 586, affd 17 N.Y.2d 474; Loschiavo v. Port Authority of New York and New Jersey, 86 A.D.2d 624, affd 58 N.Y.2d 1040;Kasper v. Buffalo Bills of Western New York, 42 A.D.2d 87, 92). The Court held that the alleged statements of the store manager, although hearsay, fall within the principal/agent admission exception and are, therefore, competent evidence on the issue of whether defendant supermarket had actual notice. We argued at a mediation that the sworn statement of the co-worker should be considered as an admission against interest against the defendants and actual notice to them of the fact that they knew of the dangerous recurrent condition of opening the basement floor door which was not secured and where the public was allowed to walk near.
A similar case we relied upon was Ambrose v Hughes Bar and Restaurant, 2014 NY Slip Op 32963(U) October 28, 2014 Supreme Court, New York County .In that case, the accident occurred when Ambrose went to an employee's side of a bar , in an attempt to give the bartender a high five, and upon crossing behind the bar, fell down a flight of stairs to the cellar. At the time of the accident, the trap door to the cellar was open.
The plaintiff in Ambrose contended that there were no signs or warnings behind the bar about the trap door or stating that customers were not permitted behind the bar. The Court in denying the defendants motion for summary judgment held ,, when as here, the defendant is the operator of a business where the trap door is located, a plaintiff need not show that the open door constituted a structural defect or a building code violation “ .As for defendants' argument that the trap door was in plain view and was therefore an open and obvious condition , the court noted that the issue of “ whether a condition is open and obvious is generally a jury question and the court should only determine that the risk was open and obvious as a matter of law when the facts compel such conclusion . Westboro v WR Activities – Cabrera Mkts. 5 A.D. 3d at 72. Moreover, “ the mere fact that a defect or hazard is capable of being discerned by a careful observer is not the end of the analysis . The nature or location of some hazards , while they are technically visable , make them likely to be overlooked. Id See also: Thornhill v Toys ‘ R” Us NYTEX , Inc. 183 A.D. 2d 1071 (3d Dept 1992). . In any event , a finding that a condition is open and obvious does not eliminate a defendant's duty to maintain the property in a reasonably safe condition . Westboro v WR Activities – Cabera Mkts 5 A.D. 3dat 73 . See generally , O'Connor- Miele v Barhite & Holzinger, Inc. 234 A.D. 2d 106. (1st Dept 1966).
In the case I mediated, the black basement floor door was closed and there was no warning when the plaintiff was led behind the counter by the manager . She was directed to stay behind the counter while he went to get a delivery outside. The plaintiff in our case was not given any warning that there was a basement floor or trap door. We argued at mediation that it was foreseeable that if the door was opened behind her with no warning she may fall through the open door into the basement.
The law provides that a plaintiff need not demonstrate the precise way the accident happened , or the extent of the injuries , was foreseeable . Derdiarian v Felix Contracting Corp. , 51 N.Y. 2d 308, 315 (1980). Here the defendant concedes by the statement of the store employee that he opened the basement floor door and failed to provide plaintiff with any warning of same prior to the accident. See; Havas Victory Paper Stock, 49 N.Y. 2d 381 (1980). The counter area was not closed off to plaintiff by a door, rope or any barrier or caution sign, and she was invited and instructed to walk behind the counter. Our case settled for a high five figure settlement .
Outdoor Locks affixed to Cellar Doors
What about a fact pattern where a plaintiff trips over a lock affixed to cellar doors on a sidewalk Those cases can survive a motion for summary judgment and go to a jury. An example of such a case is Doughim v M& US Property Inc. Supreme Court of New York , 120 A.D. 3d 466, 990 N.Y. S. 2d 816 , ( 2nd Dept. 2014), where the plaintiff tripped and fell over a lock that was affixed to a set of sidewalk -level cellar doors. The Court held that the lower Court properly denied the defendants' motion for summary judgment dismissing the complaint. e, the defendants failed to establish, prima facie, that the lock, over which the plaintiff allegedly tripped and fell, was not a dangerous condition ( see Jelle v Etfried Realty Corp., 266 App Div. 981, 44 N.Y.S.2d 381; cf. Kempe v Concourse Realty Corp., 237 App Div. 708, 262 N.Y.S. 404). Furthermore, the defendants failed to make a prima facie showing that the lock was trivial and therefore not actionable ( see Deviva v Bourbon St. Fine Foods & Spirit, 116 A.D.3d 654, 983 N.Y.S.2d 295; Nagin v K.E.M. Enters., Inc., 111 A.D.3d at 901), or that the lock was open and obvious and not inherently dangerous ( see Stoppeli v Yacenda, 78 A.D.3d at 816; Gradwohl v Stop & Shop Supermarket Co., LLC, 70 A.D.3d 634.
If you have been involved in any trip and fall accident call Lemmo Law for a free consultation. We will analyze the facts of your fact pattern and tell you if you have a case.