Part II

As I wrote in Part I, I would like to explain what I do and educate you all a bit on the law in New York State. My last column was about representing people injured in auto accidents. This week will be about representing people injured in falls.

Here are three main types of fall cases: 1) falls in supermarkets, 2) falls on sidewalks due to uneven conditions, and 3) falls due to snow and ice on sidewalks.

In supermarket cases, it is not enough that you fell on some item. You cannot win at trial unless you prove that the supermarket had either “actual notice” or “constructive notice.” To prove “actual notice,” you must prove that the supermarket was actually told about the item on the floor prior to the accident. To prove “constructive notice,” you must prove that the item was on the floor long enough prior to your accident that the supermarket had enough time, in the exercise of reasonable care, to discover it and clean it.

Cases where one can prove that someone actually told a supermarket employee about the particular item on the floor prior to the fall are few and far between. Cases where the injured party himself saw the item on the floor 10-15 minutes before, and then later slipped on it, are also few and far between. The typical case is that someone slips on a food item on the floor and has no idea how long it had been there. The supermarket’s attorneys then take the position that the item had only been on the floor for a very brief time before the accident and the supermarket had no reason to know about it.

There are various ways to provide evidence of actual or constructive notice. The typical way evidence of notice is provided is that people have observed the item they slipped on after they slip (i.e., while lying on the floor). If the client can testify that the food item he slipped on looked very dirty, or looked like others had stepped on it before he did, this would be some evidence that it had been on the floor for a while. Alternatively, sometimes a supermarket employee admits to the client after the accident that he knew the item was there and was meaning to remove it, but did not get a chance. Also, nowadays supermarkets typically have videos. A video might show how long the item had been on the floor prior to the accident. Once you provide the insurance company with some evidence of actual or constructive notice, they are willing to discuss settlement of the case without waiting for a trial.

With regard to people who fall due to uneven conditions on a public sidewalk, there are many types of buildings that might be adjacent to an uneven public sidewalk. For example, the adjacent building might be an apartment building, a commercial building or a private house. Under the law in effect in New York City since 2003, when the adjacent building is a commercial building or an apartment building, the owner will be responsible. But if the person falls on a sidewalk alongside a one-, two- or three-family residential property, such as a private home, then the City of New York remains the responsible party (unless the owner does not live there). But in order to recover against the City of New York, one must prove that its Department of Transportation had written notice of the unsafe condition prior to the accident or that the City of New York created the condition. Normally, these are very hard to prove.

Most people who come to me were injured on sidewalks in commercial areas or alongside apartment buildings. Thus, we are able to provide them with a remedy against the building owner. The settlement will be paid by the insurance company for the building owner

What about people who fall due to snow and ice? For example, assuming an individual falls on ice on the sidewalk alongside an apartment building and that the accident occurred at 3 p.m., and that it had stopped snowing at 10 a.m. Does the injured party have a legal remedy against the building owner?

In New York City, he will. Under Sec. 7-210 of the New York City Administrative Code, owners of commercial property and apartment-building owners were made responsible for injuries that occur when they fail to keep the public sidewalk adjacent to their property in a reasonably safe condition. The section specifically refers to conditions of snow and ice as conditions that building owners are responsible for.

Does Sec. 7-210 make the owner responsible to those who fall while a storm is in progress? No. The precise obligation of the building owner is set forth in Sec. 16-123. The owner has immunity while the snow is falling and for four hours after it ceases. Only if there is an unsafe condition four hours after the snow ceases has the owner not met his obligation. (The time between 9 p.m. and 7 a.m. is not included in the period of four hours. Owners are entitled to sleep!)

What constitutes an unsafe condition? Is the owner required to completely remove all the snow and ice? This will be a question for the jury. But most likely, if the jury believes that there was snow and ice on the sidewalk and that this was the cause of the fall, they will find the owner responsible.

It should be evident that the New York City law is a very favorable one for injured people. Four hours is a very short period of time. (The law does give a slight leniency to owners of property in Queens and Staten Island. They only have to begin the removal of the snow within four hours; they have to complete the removal within a reasonable time thereafter.)

Weather reports are very useful to attorneys in snow and ice cases. When a client first calls, it is typically days or weeks after their fall, and the client has very little recollection of when the snow ceased prior to their fall. But this information is found in monthly governmental weather reports. These show the exact hours that the snow commenced and ceased each day. These reports enable the attorney to decide whether to accept the case and enable him to establish the liability of the owner. (In New York City, there are separate monthly weather reports for Central Park, LaGuardia Airport, and Kennedy Airport, since the precise time the snow begins and ends varies throughout the city.)

It is important to be careful and walk slowly in snow and icy conditions. But if something goes wrong, it is good to know that, in New York City at least, one does have an effective legal remedy, if you fall alongside an apartment building (more than three families) or a commercial premises.

Mitchell First is a personal injury attorney with 30 years of experience. His office is in Manhattan and he can be reached at 1-800-710-7250. His website is www.MitchellFirstlaw.com.