G&S OBTAINS JURY VERDICT AGAINST A 92 YEAR OLD WOMAN IN FAVOR OF CLIENT LANDLORD IN TRIP AND FALL ACCIDENT IN SUPREME COURT, QUEENS COUNTY
Plaintiff, a then 87 year old woman, fell on July 2, 2010 in front of the assured’s building allegedly due to a raised handle on cellar doors which our client had utilized earlier that day resulting in facial injuries, including a fractured orbit, and a fractured right elbow. She argued that our client owned the building and had opened the cellar door for a tenant on the day of the accident despite the door not having been used in the 5 years prior to the accident. Plaintiff testified that after her accident, our client’s daughter pushed the door handle down in an attempt to hide evidence of fault. On cross examination however, we established that she had testified that the handle was still upright when she was removed by ambulance. We also established that she had never seen the handle in an upright position prior to her accident despite her frequent passing of the location. Further, we established that upon leaving the hair salon at 11:30 a.m. to have lunch with her friends, the handle was not in the up position, a mere ½ hour prior to her accident at 12:00 noon.
Although plaintiff called a professional engineer, we successfully moved to preclude him from testifying generally about our client’s failure to comply with the New York City Administrative Code. The Court only allowed him to testify regarding his inspection of the door handle. He claimed the handle was unsafe in the upright position and because it was rusted it could get stuck upright. On cross-examination, we established he did not measure the diameter of the holes versus the diameter of the handle undermining his claim that gravity would not cause the handle to return to being flush with the door.
Our client testified that the door was opened prior to the accident there was no problem with the functioning of the handle. He further testified that when he closed the door that morning he was sure the handle was flush with the cellar door surface. He inspected the sidewalk twice a day for debris and never received complaints about the door handle and denied awareness it got stuck in an upright position although he did acknowledge it can be manipulated to remain in the upright position.
Our professional engineer testified that unlike plaintiff’s expert, he measured the diameter of the holes and the handle which allowed the handle to become flush with the cellar door surface merely with gravity. He testified he tested it and it was working properly as designed at the time of his inspection and that the rusting was normal considering the cellar door was exposed to the elements.
Finally, we called the tenant who testified that he had closed the cellar door in front of our client who supervised the event. While the tenant acknowledged on cross that our client told him he needed to be careful with the handle because it could get stuck, he maintained that he left the handle flush. He also testified that when he responded to the scene of the accident the handle was down.
In closing, plaintiff’s counsel argued it could not be a coincidence that the cellar door was opened the same day as the accident and that it was our client’s responsibility to make sure the handle was down. We in turn argued that the tenant testified the handle was flush before and after the accident and that plaintiff failed to call her friends who were with her that day to testify on her behalf. We also highlighted that although plaintiff claimed our client’s daughter pushed the handle down, she also testified the handle was up when she was removed by the ambulance.
The jury returned a verdict the jury found our client not negligent and assigned 100 percent of the fault to the plaintiff herself.