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Dangerous Falls through Trap Cellar Doors in Stores - What a Prospective Client needs to know !

Posted by Edward Lemmo | Jul 29, 2021 | 0 Comments

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 (seee.g.,Fasolino v. Charming Stores77 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 (seeGuzman v. L.M.P. Realty Corp., 262 A.D.2d 99, 100Koren v. Weihs201 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 Supermarkets270 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 (seee.g.,Bransfield v. Grand Union Co., 24 A.D.2d 586affd 17 N.Y.2d 474Loschiavo v. Port Authority of New York and New Jersey86 A.D.2d 624affd 58 N.Y.2d 1040;Kasper v. Buffalo Bills of Western New York42 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.

Conclusion 

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. 

About the Author

Edward Lemmo

Edward Lemmo Esq. of Lemmo Law TOP NYC PERSONAL INJURY LAWYER For over 34 years Edward Lemmo has distinguished himself as a one of the top personal injury lawyers in Manhattan , Bronx , Brooklyn and the Upper West side ,combining hard work and dedication to achieve positive results for his clients. Lemmo Law's philosophy is clear. We prepare every case as if it is going to trial .

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