Practice point: The defendants established their prima facie entitlement to
judgment as a matter of law by submitting the deposition testimony of
the plaintiff, who had no recollection of the accident and could only
state that just prior thereto, he heard a "sound . . . like the wood
giving out from underneath me." Based on this testimony, a jury would
have to speculate as to the cause of the accident. In opposition, the plaintiff failed to raise a
triable issue of fact. Contrary to the plaintiff's contention, his employer's deposition testimony was insufficient
to raise a triable issue of fact on causation. The testimony regarding a conversation he had with the plaintiff at the
hospital following the accident about what caused him to fall was vague
and, in any event, hearsay. The deposition testimony regarding a
conversation he had with a maintenance person employed by the church
about what the plaintiff told him caused the accident also constituted
hearsay. Finally, although, in opposition to the defendants' motion, the
plaintiff's expert offered his opinion regarding dangerous conditions
that caused the plaintiff's accident, such as the lack of handrails,
there was no evidence to connect these alleged dangerous conditions to
the plaintiff's fall.
Student note: A defendant can establish its prima facie entitlement to judgment as
a matter of law by showing that the plaintiff cannot identify the cause
of the accident.
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 injuries would be based on speculation.
Case: Antelope v. Saint Aidan's Church, Inc., NY Slip Op 07003 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Statute of limitations.
