Slip and Fall Cases Dismissed by Appellate Courts

Garcia v. Delgado Travel Agency
(Appellate Division, First Department)

Galietta v. New York Sports Club
(Appellate Division, Second Department)

Theodouro v. Aphis Realty Inc.
(Supreme Court, N.Y. County)

People slip and fall all the time — in stores, on stairs, in office buildings, on sidewalks. It’s not because they are inherently clumsy.

When someone slips and falls, it’s usually due to slippery substances on the floor such as water, wax, lettuce or catsup. Many people assume — wrongly — that any time someone falls in New York and sustains serious injuries on someone else’s property due to a slippery substance, then there’s a good case to be made for pain and suffering damages.

Not true!

Under New York personal injury law, most slip and fall cases are no good and judges routinely dismiss them unless a certain factor known as “notice” is present. Three recent cases illustrate the point.

In Garcia v. Delgado Travel Agency, a Manhattan judge dismissed a slip and fall case and he was upheld this week by the appellate court. Ms. Garcia entered a travel agency office on a rainy day and fell in the office lobby. She sued. She lost.

The judge stated that there was no evidence that the travel agency either created the wet condition or had notice of that hazard (the wet floor) that could have been prevented by the exercise of reasonable care. As a matter of law, the judge said, a premises owner is under no obligation to cover the entire floor with mats and continuously mop up all rainwater. Without proof as to how long a wet floor condition exists, no inference is permitted in court that the floor was wet for so long that the premises owner should have cleaned it up to prevent the fall.Galietta v. New York Sports Club, presented a similar situation. In that case, the appellate court governing Long Island, Westchester and Staten Island reversed a lower court judge who had not exercised his power to dismiss a lawsuit. Spilled liquid on the stair of a sports club was said to have caused Ms. Galietta to slip and fall, causing serious injuries.

Again, the “notice” issued carried the day for the premises owner. The court stated that even if the defendant had a general awareness of spilled liquid on the stair, this would be insufficient to establish constructive notice of the wet stair that caused the plaintiff to fall.

In Theodouro v. Aphis Realty, Inc., family and friends were attending a traditional Greek wedding celebration at a Manhattan nightclub. Guests were taking part in the Zambekio, a traditional Greek wedding dance during which flowers and paper money are thrown at the dancers and musicians. You guessed it: Mr. Theodouro slipped and fell on the dance floor. He sued for his serious injuries claiming the nightclub was negligent in allowing this dangerous condition.

The judge threw out the case in February 2004 without allowing a trial stating that Mr. Theodouro assumed the risk of being injured. The judge discussed the long-standing and well-known concept of assumption of the risk: one who voluntarily participates in a recreational activity presenting inherent and known risks cannot win a lawsuit when he is injured during that recreational activity. Courts consider a person to consent to risks (such as falling on a dance floor) when the risks are fully understood and perfectly obvious.

In the Theodouro case, the judge said that the risks of slipping on flowers and paper money while dancing were as apparent as the risk of slipping while tap dancing on a slippery dance floor — or of losing one’s balance while dancing with three inch heels, cases which also have been dismissed in the past.

Now, what would the law be without exceptions? Here are cases that were not dismissed but, instead, allowed by the judge to be resolved by a jury:

  • When bar patrons threw cups in which jello-based drinks had been served onto the floor and a dancer slipped and fell (Endres v. Mingles, 271 A.D.2d 207);
  • When a racecar driver crashed into a track wall whose contour and design were unique, not apparent and dangerously increased the driver’s risk (Owen v. R.J.S. Safety Equipment Inc., 79 N.Y.2d 967); and
  • When a tennis player tripped over a torn net separating his court from the next. The jury held that the damaged and dangerous net was neither apparent nor an inherent risk (Siegel v. City of New York, 90 N.Y2d 471).

Slip and fall cases are usually very hard to prove. As indicated, unless you can prove that

  1. the defendant created the dangerous condition — (for example, evidence that the water causing a supermarket customer to fall came from the supermarket’s own leaky air conditioner), and
  2. that the defendant was actually aware of the wet area (for example, evidence of a prior complaint) or
  3. that the defendant had “constructive notice” of the wet area (for example, evidence that the floor was wet for 30 minutes or more, such that the defendant should have known it was wet and dried it up),

…then your case could be dismissed no matter how serious your injury.

In any slip and fall case, it is crucial to gather evidence as soon as possible. This includes photographs, witness statements and the like.

A future Topic of the Week will discuss the unique aspects of another slip and fall scenario: snow and ice cases.

You’re Invited to Call or E-mail!

If you have been injured as the result of a slip or trip and fall, I urge you — perhaps more so than in any other type of New York personal injury case — to contact me without delay.

I have recovered substantial sums of money for pain and suffering for people injured in all types of New York slip and fall cases against owners of office buildings, supermarkets, casinos and others types of structures.

I will gladly speak with you over the telephone or in person, whichever you prefer. And your initial visit is always free. You’re welcome to call me anytime. I promise I’ll do everything I can to help you. JH