Falling down steps is not an uncommon occurrence or unusual type of accident. It happens every day to people given the thousands of steps found overall in apartment buildings, subways, office buildings, private homes, commercial establishments, etc. The law is rather clear in a case where plaintiff falls and (1) identifies the exact step or spot involved; (2) describes the dangerous defect that caused the fall (broken step, debris, a spill, snow and ice, etc.); (3) offers proof that the owner of the steps knew or should have known of the defect and failed to repair or remove it.
Having established the above, the plaintiff will have made out a prima facie case sufficient to defeat a defendant owner’s motion to dismiss. As such, the case can thereafter be decided by a jury (if not settled in the interim).
The difficulty however, lies when in many cases, the injured plaintiff does not know the exact step involved, the specific defect that caused the fall, or whether the defendant owner had actual or constructive (should have known) notice of the dangerous defect. In such event, the injured plaintiff cannot speculate as to any of the three essential elements above. Thus, in order for the plaintiff to defeat a motion to dismiss the case, it must offer sufficient proof in support of each of the three elements set forth above. Such proof however, may be circumstantial as in the recent Supreme Court, New York County case of Conti v. Conti decided by Justice Gische and reported in the New York Law Journal on July 26, 2012. There, the Plaintiff was unable to state specifically which step caused the fall, but did offer proof that she fell on “some debris” that had accumulated from loose cement that came from the steps. This proof was sufficient for the court to rule that while Plaintiff could not state the specific step or specific defect that caused her to fall, she offered sufficient “circumstantial evidence”, thereby removing the issue of “speculation”.
Similarly, the element of notice of the defect to the defendant owner was sufficiently satisfied by circumstantial evidence as well.
While the plaintiff in the Conti case was able to defeat a motion to dismiss based upon the circumstantial evidence she offered to support the three elements set forth above, other cases have been dismissed by the court where the injured plaintiff has either “speculated” or “guessed” as to the specific step involved, the specific defect, and/or the actual or constructive prior notice of the defect the defendant owner had.
This is a warning to anyone injured in a fall: make an immediate note of the specific step or spot of the fall, and the specific defect if feasible. The element of notice actually will be developed by an experienced personal injury lawyer through an expert engineer, depositions, documents, witness statements, photographs, etc. And since most people today carry cell phones capable of taking pictures, a photograph taken immediately after a fall depicting the dangerous condition will be extremely crucial to the success of the case.