My mom had tripped exiting a deli. There was one step before the entrance of the deli. When my mother had exited the deli, she didn’t see the step and had tripped and fallen in the parking lot. Does she have a case?
She may have a claim, but it will be difficult to prove.
Open and Obvious Condition
A pedestrian has duty to see what there is to be seen. Since you said your mother injured herself exiting the deli, it seems like she knew the step was in front of the building. She must have walked up that stair in order to enter the deli. So, at the very least, your mother is partially at fault.
There are some cases which hold that a condition is so open and obvious that landowner is absolved from any liability. The reason is because the condition is so obvious that as a matter of law the pedestrian should have avoided tripping. Sandler v Patel, 288 AD2d 459, 733 NYS2d 131 (2d Dept 2001).
But more cases seem to point out that the obvious nature of a defect really go to the comparative fault of the pedestrian. These cases would not dismiss your mother’s case, but let a jury decide if the deli was negligent. Sportiello v New York, 6 AD3d 421, 774 NYS2d 353 (2d Dept. 2004).
Inherently Dangerous
There are also another line of authorities that would dismiss your mother’s case. The theory is that if a condition is open and not inherently dangerous, then the deli is not liable. Gerner v Shop-Rite of Uniondale, Inc., 148 AD3d 1122, 50 NYS3d 459 (2d Dept 2017). Again, since it is one step in the front of building, the defense will argue that there is nothing inherently dangerous about the stair.
Industry Standards
Probably your best avenue for recovery would be to retain a building safety expert. As noted in a prior post, you can offer the testimony of an expert to prove negligence. The expert must have the training and experience to testify. The expert must only testify about safety standards common in the industry.
So your expert would have to testify about the nature of the stairs. He would have to find something about the stairs that was dangerous. And more importantly, he would have to testify how the deli stair was different than was common in the building industry.
For example, assume that the deli stair was not striped on the tread. Then it is not enough to cite a safety study or set of guidelines that say a stair should be painted with a stripe on the front of the tread. The expert would have to testify about actual standards currently used in the construction industry. So just because an expert or study thinks something would be safe, does not mean a jury can consider the testimony. Guldy v Pyramid Corp., 222 AD2d 815, 634 NYS2d 788 (3d Dept 1995).
So if you have an expert who looks at the stair and finds it is unsafe, he must specifically state why the stair is unsafe. And he must also state how the stair does not conform the industry standards.
By James Santner, Esq.
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