Tag: Staten Island Trip and fall accident

Bus accidents, Municipal Liability, New York City Transit Liability, Slip and fall accident

Negligent Bus Discharge and Pick Ups

I fell and injured myself when I was trying to enter a bus. The bus driver did not pull up to the curb where the bus stop was located. Instead, he stopped in the lane of travel near the bus stop, approximately five to ten feet from the curb. When I left the curb to walk to the bus stop, I tripped and fell in a street pothole between the curb and the bus door. Can I sue the bus for my injuries?

Unfortunately, the best answer you can get at this point is probably. The law in this area is developed only in the Common Law. Common law is not a statute passed by the legislature and signed by the governor. The Common Law regarding buses in New York City has developed over decades with judicial decisions decided by the Supreme Court and the Appellate Courts. As explained in prior blogs, there is a legal principle of stare decisis which states that similar cases should yield similar results. This means each case is a little different and each case requires research to find a similar case.

First, there is a long line of cases which state that bus drivers have a duty to drop off and pick up passengers in a safe place. The next question would be if the bus driver discharged his duty by stopping so far away from the curb near a street pothole? The closest case to your facts is found in Defay v City of New York, et al, 174 AD3d 406, 101 NYS3d 603 (1st Dept. 2019). In that case, a gentleman fell in a Manhattan street pothole while walking from the bus stop curb to the bus. The pothole was in the pedestrian’s path walking from the curb to board the bus, approximately seven or eight feet away. This seems similar to your case. But ultimately it would be up to a jury to decide whether the bus driver was acting “reasonably” under the circumstances.

The careful attorney would not stop by suing the New York City Transit Authority. Because the City of New York, not the New York City Transit Authority, has the duty to maintain bus stops, streets, sidewalks and curbs. Therefore, the real issue might be whether the pedestrian entering the bus took the most direct route from the curb to the bus. The New York City Transit Authority may argue that there was no causal relationship between the street pothole and the place where the bus stopped. The Transit Authority may argue that the pedestrian did not take the most direct route from the curb to the bus door. Thus, The Transit Authority could argue that there was no causal relationship between the place where the bus driver stopped to pick up the pedestrian and the bus stop because the pothole was not in the most direct route.

So that is why the answer to the question is that you probably do have a claim against the bus; but your careful attorney will also sue the City of New York as well.

Accident Cases in Court, Landlord Liability, Municipal Liability, Slip and fall accident, Statute of Limitations, Undeveloped Land Accident

Accidents on Undeveloped Land

I was injured when I was driving an all-terrain vehicle (ATV) upstate. Can I bring a claim for my injuries?

You probably will not a claim for your injuries. Although, as explained later, there may be certain circumstances in which you can bring a claim, using ATVs generally exclude you from any claim against the landowner.

Although all landowners have the common law duty to all people on their land of “reasonable care.” (As mentioned in some of the prior blogs, a common law duty is imposed by Courts on certain people based on many Courts’ decisions over decades. These decisions over time become duties imposed on people subject to the Court’s jurisdiction.) The exception to the common law duties imposed by Courts can be found in statues enacted by the legislature and governor.

In this case, a private land owner has no obligation to keep a premises safe when the person on the land is engaging in certain recreational activities. General Obligations Law § 9-103. So if a person is injured on property while hunting, fishing, canoeing, trapping, hiking, boating, canoeing, horseback riding, bicycle riding, hang gliding, snowmobile operation and ATV riding, then the owner of the property has no obligation to make the land safe for any of these purposes. Thus, the property owner has no obligation to clear paths (and possible pave them) so an individual can safely ride an ATV.

There are exceptions to this rule. One exception would be if the landowner charged for people to ride ATVs on the land. But your question did not mention any fee was paid for permission to ride an ATV on the land. A second exception would be for some willful or malicious condition. Again, the question did not mention any concealed malicious trap set on the land to disrupt the ATV rider and cause injuries. It was just typical wooded upstate property.

This case becomes even more complicated if the accident occurred on New York State land. If the State of New York is a possible defendant, all claims must be brought in the Court of Claims (a separate Court different than the Supreme Court, the Court of Claims handles only cases against the State of New York). There are also short statute of limitations to bring claims against the State. All claims against the State must present a “Claim for Damages” followed by a filing of the lawsuit in the Court of Claims. The State also has certain defenses that an ordinary citizen or company does not have.

Trip and Fall Accidents

Momentary Forgetfulness

I fell in the parking lot of a bagel store that I frequent.  There was a piece of chain link fence that was sticking out in the parking lot. I have walked by this defect manytimes without falling.  Can I still make a claim against the parking lot for my injuries?

The short answer is yes. But as you have already figured out, there will be some problems with your case.

De Minimus versus Open and Obvious

The first issue is the size of this piece of fence.  If the broken fence piece is really small (say less than 1/2 inch), the owner of the parking lot can claim the legal defense that the condition is de minimus.  That is, no reasonable person could possible fall on such a small defect. If this broken fence piece is really big, the owner of the parking lot can claim the legal defense of open and obvious.  That is, everybody who walks by the defect should see what was there to be seen and avoid the foot trap.

Momentary Forgetfulness

I am inferring from your question that your case is a defect somewhere between the two defects mentioned above.  Fortunately for you, even if you knew about the condition and could have avoided it, you can legally claim that you had momentary forgetfulness about the broken fence and had tripped anyway. There no legal doctrine or jury charge specifically on “momentary forgetfulness” since the law changed to comparative negligence in 1975. See Flynn v City of New York. The plaintiff can testify and attorneys can argue that the plaintiff may have walked by the defect before the accident, but he momentarily forgot about it. People do not walk through life expecting they are in a minefield looking for and remembering every defect and pothole. It is not expected that a person will have to remember every time they walk that there is a known defect.  People walk erect and look straight ahead when they walk. Sometimes people just don’t look and don’t remember a known hazard in their path.  It is up to the landowner to repair defects.

It is impossible for me to say how your case will turn out.  The Court of Appeals has been very explicit that there is no specific test to determine if a defect is too small or too obvious. There are many circumstances the court would consider, not just the size of the defect. You have a good legal argument for your case, but the parking lot owner also has a good legal argument as well.

Trip and Fall Accidents

Falls On Commercial Property

I fell inside of a mall on a staircase, the insurance adjuster for the mall was very nice at first, but she still hasn’t paid my medical bills after a year.  What can I do?

Depending on what happened, there may be something you can do to get your bills paid.

First, I will assume for purposes of this question that your accident happened in New York.  In New York, the statute of limitations is three years for negligence cases, so you could file a law suit for recovery of your medical bills, lost wages, and pain and suffering.

Broken Stairs

Second, you will have to be more specific about the reason that you fell.  If the stairs were broken, you would be able to recover.  For example, there may be something wrong in construction of the stairs (such as misleveling). Your attorney may have to hire an engineer or architect to look at the stairs. The engineer may determine if there was some violation of the building code in their construction.

Foreign Substance

Third, if you fell because of something on the stairs such as food or some other foreign substance, the case becomes more complex.  As the injured party, you have the burden of proof to show that the condition was was created by the land owner or existed for an unreasonable period of time.  If someone was mopping and left the staircase wet with no signs warning of the condition, the land owner is responsible.  However, probably one the most litigated questions occurs when a third party leaves a hazardous condition on stairs for an “unreasonable” period of time.  Quite frankly, there is no consistent answer among courts about what is a “unreasonble.”  It depends on the circumstances surrounding the accident. One person’s unreasonable is another person’s reasonable.  There are only some guiding principles which a jury will follow to the best of their ability.

Duty to See What There to be Seen

Fourth, under New York law you, as a pedestrian, have a duty to see what there is to be seen.  In other words, if you could have avoided the accident, you should have.  Unfortunately, a judge or jury gets the benefit of hindsight. They could find you are partly or totally responsible for the accident based on what you should have seen.

Finally, you have already given a statement, so your story (even if the story is not complete or you were misled by the questions you were asked by the adjuster) is already set.  That bell cannot be unrung.  The purpose of the insurance adjuster is to try to get admissions out of you to help the insurance company defend the case.  Even if the adjuster seemed nice, they are only doing their job.

People are more willing to talk to an adjuster if that person seems like they want to help you.  That is why we advise people not to give recorded statements until they consult with our office.  We advise people to tell the truth. But we also advise people about traps the adjuster may set to help the insurance company.