NEVER GIVE UP; NEVER STOP FIGHTING FOR JUSTICE FOR CLIENTS HURT BY THE NEGLIGENCE OF ANOTHER
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Injury Attorney)
I'd like to write about an interesting accident case that I'm handling and how a judge can sometimes get it wrong, and how a higher (appeals) court can make things right.
One snowy day, my client was working as a plumber's helper in a Manhattan building. Through tracked-in snow and what have you, the stairway leading from the street to the basement worksite was wet. My client slipped down several steps and hurt his back.
I did what any smart lawyer does where his client is badly hurt and has suffered a serious injury - I hired an expert to examine the steps. Known as "discovery and inspection" I might sometimes call on an architect or engineer or, in this case, a Certified Safety Professional, to measure and photograph the steps. To get an idea of what my expert looked at, I'll quote from his report:
" The stairway failed to have handrails on both sides;
Further, the handrail was obstructed and recessed 7 ½ inches;
In addition, the handrail was too high at 35 to 36 inches;
A properly designed handrail system is important, as it will serve to prevent the occurrence of a slip/ misstep as well as provide a means of recovery for the pedestrian in the midst of a fall. Plaintiff may have been able to prevent his fall had there been two handrails to reach for while he was falling, had the existing handrail been placed lower so as to be at an appropriate height for plaintiff to reach while he was falling, and had the existing handrail not been recessed or obstructed allowing plaintiff to have immediate access to the handrail upon his fall.
The top landing of the staircase is forward pitched at approximately 2.4 degrees when it should be level and true, which can cause slippage and loss of balance;
The first riser of the staircase is at 4½ inches, is too low and dangerous to pedestrian users. The human gait is ideally suited to accommodate a 6 to 7 inch rise, and a surface condition encounter that is different than expected may not allow the required gait adjustments, leading to the possibility of an accident;
The tread width of the staircase is only 8 3/4 to 9 inches in the center and is too short and is dangerous for use. The shortened tread width does not agree with the pedestrian's expectations and causes the foot to land improperly with insufficient support while descending. The shortened tread design is dangerous and is known to cause the pedestrian's foot to slip or miss the step entirely."
My expert found that many of these conditions violated the New York City Building Code and what we call "good and accepted safe practice." In other words, my client fell and got hurt and injured because the stairs were lousy and defective.
Defendant's lawyer applied to the Court (made a motion) for summary judgment, asking the judge to throw out my client's case on paper, without ever getting a jury to hear about how the accident happened, or about his injuries. The reason the defense (and its insurance company) presented to the judge? They claimed my client fell because the stairs were wet, and it was the middle of a storm, and the building owner could not be expected to stand by the stairs with a mop in hand to protect people climbing up or down the stairs. This is called the "storm in progress" argument, and completely ignored the defective condition of the stairway, which I had notified the other attorneys about.
The judge bought into the insurance carrier's argument and dismissed my client's case, finding that the storm in progress argument should win, even though my client's expert looked at, examined, measured and photographed the stairs. And even though the defense had no expert to say the stairs were good stairs that had nothing wrong with them.
My client and I decided to appeal the judge's decision to a higher court, known as the Appellate Division. In my client's appeal brief I adopted the findings of my Certified Safety Expert, and this is how I described the stairs:
"Considering the defective stairway in the sequence that it would present to a pedestrian: (a) one passes from the sidewalk through a doorway threshold both too short to be a proper step and too high to offer a level transition from the street; (b) onto a downward-sloped (forward-pitched) landing; (c) which leads to a top step with a too-narrow tread width. Plus, the stairway was missing a handrail on one side and on the other side presented a handrail improperly placed too high, obstructed and recessed."
I'm pleased to report that justice was done here, and that the appeals court reversed the lower court's decision and reinstated my client's case. The appellate court held, in part:
"However, viewing the evidence in the light most favorable to the plaintiff (see Wilson v. Rojas, 63 AD3d 1048, 1049), the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law by eliminating all issues of fact as to whether the existing single handrail violated applicable statutory and code provisions, whether the presence of another handrail was required, and whether the defendant's alleged failures in this regard proximately caused the plaintiff's accident (see Palmer v. 165 E. 72nd Apt. Corp., 32 AD3d 382, 382; Asaro v. Montalvo, 26 AD3d 306, 307; Viscusi v. Fenner, 10 AD3d 361, 361-362; see also Christian v. Railroad Deli Grocery, 57 AD3d 599, 601; Martinez v. Melendez, 32 AD3d 999, 1000; Scala v. Scala, 31 AD3d 423, 425; Cruz v. Lormet Hous. Dev. Fund Corp., 7 AD3d 660, 660). Contrary to the defendant's contention, as the movant, it had the burden of refuting the plaintiff's contention that the stairway where the accident took place was in violation of certain statutory and code provisions (see Camarda v. Sputnik Rest. Corp., 65 AD3d 561; Viscusi v. Fenner, 10 AD3d at 361-362; cf. Asaro v. Montalvo, 26 AD3d at 307; Hotzoglou v. Hotzoglou, 221 A.D.2d 594)."
This means my client gets his day and court, and the defense has to defend the safety of its stairway. I should add that during the time the appeal was pending, my client underwent back surgery for his injury. For the curious among you, this 2009 decision, entitled Velez v. 955 Tenants Stockholders, Inc., can be found at 66 A.D.3d 1005.
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