New York Team Obtains Appellate Victory in Trip and Fall Case
New York, N.Y. (March 25, 2019) – New York Partners Sheryl Fyffe and Meredith Nolen were recently successful on appeal before New York’s Appellate Division, Second Department in a trip and fall case. In the matter, the plaintiff had filed suit against our client, a property owner, alleging that, due to scaffolding erected on the sidewalk adjacent to the property, she was forced to walk into a tree well where she tripped and fell on uneven bricks and sustained multiple injuries. The plaintiff claimed that the scaffolding narrowed the sidewalk and left no room for a pedestrian in a wheelchair walking towards her to pass, and that she therefore had no choice but to step into the tree well to allow the wheelchair to go by.
The plaintiff obtained a default judgment against the scaffolding company who did not appear in the case and we moved for summary judgment, arguing that the insured had no duty to maintain the city owned tree well where the plaintiff fallen. We further argued that the uneven bricks inside the tree well that were the proximate cause of the plaintiff’s injury, and that the insured did not create the alleged dangerous condition of uneven bricks, nor did our client negligently repair the tree well. We also argued that even if the scaffold narrowed the sidewalk as alleged by the plaintiff, this merely furnished the occasion upon which the plaintiff was injured and was not the proximate cause of plaintiff’s injuries. The lower court found that the plaintiff’s opposition failed to raise a trial issue of fact and granted our motion for summary judgment.
On appeal, the plaintiff’s counsel attempted to convince the appellate court that the plaintiff was “forced” to walk into the tree well that contained the bricks where the plaintiff fell because the scaffolding did not allow her to escape the path. The judges were not persuaded by this argument and pointed to pictures in the record showing sufficient space for the plaintiff to pass or move to allow the wheelchair to pass.
In opposition, we pointed to the fact that the plaintiff never testified that she was “forced” into the path, as counsel asserted. Rather, her testimony indicated that she saw the wheelchair coming towards her and that she wanted to move to allow the wheelchair to pass. We also argued that evidence, including the plaintiff’s own testimony, showed that the sole proximate cause of the accident was the condition of the bricks in the tree well that the adjoining landowner had no responsibility to maintain. The court agreed and affirmed the lower court’s summary judgment order in favor of our client, concluding that they owed no duty to the plaintiff.