Practice point: A plaintiff's inability to identify the
cause of the fall is fatal to the cause of action because a finding that
the defendant's negligence, if any, proximately caused the plaintiff's
injuries would be based on speculation. Here, the moving defendants established their prima facie
entitlement to judgment as a matter of law by submitting, among other things,
the plaintiff's and her husband's deposition testimony which
demonstrated that the plaintiff could not identify the cause of her fall
without resorting to speculation. Although the plaintiff claimed that a bar connected
to the bottom step of the bus caused her to trip, she acknowledged that
she did not see this bar before her fall, and that she did not know which
foot made contact with the bar. She stated that she only assumed that she had
tripped on the bar after she regained consciousness and went looking for
the source of the fall.
Student note: The settled law is that "[w]here it is just as likely that some other factor,
such as a misstep or a loss of balance, could have caused a slip and
fall accident, any determination by the trier of fact as to causation
would be based upon sheer conjecture." Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 435.
Case: Deputron v. A & J Tours, NY Slip Op 03629 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: A motion to vacate a default judgment.
