March 23rd, 2015

Subway Gunfights and Other Distractions

distractionEver been in a crowded subway car when a gunfight broke out? I have. It’s not a fun altercation.

That incident from 20 years ago popped back into my brain when someone was shot and killed in the NYC subway system recently. Apparently some strangers exchanged words, and then blammo. (That’s the short version. Fuller version at Scott Greenfield.)

My experience with a gunfight occurred on an uptown Seventh Ave. express heading into Penn Station. At rush hour. Two guys started pushing each other, about 10 feet away from me.

There were a few people between me and the scufflers, but in a packed car, if one person moves quickly it reverberates. A few shouts from strangers to cool it. And when New Yorkers yell at strangers to cool it, you know something really odd is going on.

We try hard to keep to ourselves. Because New Yorkers love to pretend nothing is happening, even when it is. We don’t look into the eyes of our fellow passengers. There is no end to the possibilities of what may happen, too many of which are negative.

And then a couple shouts of “Gun!”  Along with everyone else in the car, I dove to the floor. And I was happy. Happy to be on the floor of a filthy rush hour subway car. With someone else on top of me.

“Pop. Pop.” Two shots.

We pulled into Penn Station — with all those commuters on the platform thinking they were going to pile into that subway car and make their way home, as a tsunami of people flooded out.

I peeked back after exiting. There were two men on the floor. One holding a gun to the other. Neither moving.

The news that night reported a scuffle took place with pushing between the two men. One pulled a pistol. Then the other wrestled it away from the owner and shot him twice with his own gun.

Now I’ll explain why these two sudden and terrifying incidents actually matter in a simple trip and fall case. Stay with me here, because this time I think I have an actual point to make.

A great many trip/slip and fall cases focus on the defect, whether it’s ice, busted sidewalks, potholes, stairs, whatever. The defense is twofold: Either it’s too small to be actionable, or so large that it’s open and obvious. It’s all about the defect. Look, look, look at the defect. It’s tiny (or alternatively only a blind man could miss it).

Now here’s the problem, and the challenge for the plaintiff’s attorney: It isn’t enough to focus on the defect. Sure you have to prove it, but in a busy city like New York, there are a million distractions, some static and some dynamic. Your client is looking at those too.What was the reason that the defect wasn’t seen?

The static distractions are the fire hydrants, food carts, sidewalk signs and parking sign poles, trash cans and trash bags, store windows, dog droppings, sidewalk grates, and other such stuff of daily life.

But the dynamic ones are more important: These constitute the walkers, runners, vendors, baby carriages, dogs and bicycles that are everywhere, some moving fast, some slow, and some doing all they can to make sure you look at them.

And that is in addition to the hustlers who may deliberately bump you, dropping a cheap bottle of wine or eyeglasses, and demand that you pay for the damage you caused.

Why are these dynamics more important? Because you don’t want to inadvertently bump into your fellow New Yorker. Why? See gunshot stories above.

We don’t like to talk about this much, but it’s on everyone’s mind as we zig and we zag between the static and dynamic distractions of the walkways. An inadvertent bump into another is one of the disconcerting and discomfiting interactions of subway and sidewalk life, for it involves fear of The Altercation.

We don’t want to have this anxiety, but we do.  Because we don’t want The Altercation. It’s big city life, and we’d like to get safely to wherever the hell we set out to go with as little hassle as possible, thank you very much.

That’s why, on the subway, New Yorker’s don’t look at each other. Sure, looking another in the eye might be a sign of love. But it may also be one of aggression. And you don’t want your glance to be “mistaken.”

Know how you can tell who the tourists are? They look at other people on the subway — though in all fairness the pastel shirts of some give them away long before that.

Where was I? Oh yeah, so we don’t always look down when we walk. We don’t always see the static defects that blend into the background and, quite frankly, shouldn’t even be there. We mostly look for the dynamics around us, trying to avoid the cars, bicycles, crazy taxi drivers and each other.

The lawyer that focuses solely on the defect may well lose. Sure, it could be a deceptive walkway, like these stairs, poor lighting, or an infirmity of the pedestrian that makes the defect more difficult to discover or navigate.

But the defect, which represents a trap, also exists in a much larger environment and context that is filled with other dangers to our well-being.

If you take the slip/trip fall case, the client ought to be able to reconstruct his surroundings to answer the question of why the defect was missed. And I don’t mean the easy questions of lighting or personal disabilities. But what were the static and dynamic distractions that existed in the few seconds before the fall?

You can have completely different results despite a defect being identical. In one case, you might have someone walking down a narrow and crowded subway stairwell, and miss the ice patch as he strives to avoid bumping his fellow commuters.

But if the reason for that same slip was that he was sending a text message — adding his own distraction to the multitude that already exist —  there is as good chance he will lose.

To the practitioners out there, don’t just ask about the defect in the walkway. Find out what the potential client was looking at instead. Because the jury will want to know.


February 25th, 2015

Trips and Falls and Expectations (updated)

A trip and fall case invariably runs into a problem: Either the surface defect is so big that the defense claims it is “open and obvious” or it is so small that it is claimed to be de minimus and therefore not actionable.

In the eyes of a defendant, either one defense or the other (or both) will be asserted. And many jurors will accept one of those arguments.

But here is the problem, which this 2012 video below makes abundantly clear: Trips (or slips) on stairs and sidewalks and such are governed by the expectations of the pedestrian. We simply don’t walk the same way on the marble floor of an office building as we would on a rocky and rooty hiking trail. And we expect, when walking on stairs, that they will all be of an even height. And if one is off, this happens:

Trip or slip cases are not just governed by what the defect looks like, but what it is that we expect to see. A lone patch of ice, or one mis-measured step, can oft times be far more dangerous than the obvious stuff. Because then you have a trap.

Update, 3/23/15: I must be going senile. Not only did I blog this story once before, three years ago, but I used the exact same title. Which way to the Bloggers’ Asylum?


February 13th, 2010

New York Slip and Fall — A New Theory of Liability?

I’ve been rather busy work-wise, but didn’t want to let this one slip through the cracks like so many other potential posts. Because how can you let a new theory of liability on a common fact pattern, apparently never tested before in New York, just slip away?

The fact pattern is this: A self-service store (supermarket, Wal-Mart, etc.) with refuse on the floor. Patron slips, falls and is injured on the refuse. A fairly typical type of personal injury case.

To hold the market accountable, we’ve long been taught that notice of that banana peel sitting there was needed to prove liability. This can be done either by showing that the store had actual notice of the debris (someone complained or an employee saw it), or that the store should have known it was there (constructive notice). Constructive notice might come up if the injured person points out that the banana peel was black, for instance, in trying to show it had been there for a long time. Because we’ve been taught that you can hold a store liable if it knew (or should have known) of the mess.

But wait! As per Lou and the Law, New York counsel may be overlooking a theory of liability that has been accepted in 20 states, yet there aren’t any citations in New York state courts for the attempt to use that theory. It isn’t even discussed, much less analyzed. Lou refers to the Mode of Operation Rule. According to Lou:

The rule provides that If a proprietor could reasonably anticipate a hazard could arise based on the manner in which his business regularly operates, a plaintiff does not have to prove actual or constructive notice of the hazard….

When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator’s vigilance must be commensurate with that risk…

Lou, who defended cases for decades as a trial lawyer with Liberty Mutual, has much more at this link: When will New York adopt the Mode of Operation Rule?


December 4th, 2008

Case Dismissed. Case Dismissed. (Slip/Trip and Fall)

There is the perception amongst many that any injury gives rise to a legitimate lawsuit. Not so. Here are two dismissals on Tuesday from the Appellate Division, First Department of personal injury cases, with relatively routine fact patterns.

First up, a slip and fall on a waxy floor. In a very brief decision, the court wrote in a Purcell v. York Building Maintenance Corp.:

Plaintiff’s claim that appellant created the slippery condition of the floor on which plaintiff slipped by excessive waxing rests only on her observation that the floor was “shiny.” Such evidence, without more, does not permit an inference of negligent waxing….Nor may such inference be made on the basis of plaintiff’s testimony that a carpet and a yellow “caution” or “slippery” sign were placed on the floor shortly after her fall.

Next up, this plaintiff was injured when she tripped on garbage at a street fair. In Torres v. Washington Heights Business Improvement District Management Association, the court chucked the case, writing:

Although defendant, as a licensee who obtained permission to use the designated streets to sponsor and host the fair, owed a duty of care to maintain the area in a reasonably safe condition, the evidence demonstrates that defendant established its entitlement to summary judgment by showing that it had no constructive notice of the defective condition. The general awareness of litter in the streets is insufficient to raise a triable issue as to whether defendant had constructive notice of the plastic bag that caused plaintiff’s fall.

Both cases involve the issue of notice. If defendants aren’t aware of defects then they don’t have the chance to fix them. (In the first case, that assumes the floor was even overly waxy to begin with.) That notice has to be actual or constructive (which means proving the defect was there so long that they should have known.)

The time to figure out if you have notice of the defect is (hopefully) not during depositions, but during intake and investigation. If you can’t establish it without discovery from the defendant, the issue becomes that much harder. And if you can’t establish it at all, expect your case to be heading for dismisssal.


February 26th, 2008

New York Slip (or Trip) And Fall Lawsuits – A Couple of Notes

A couple of links today to point you elsewhere, because I see no need to re-invent the wheel on some basics for the practitioner.

First is an intake questionnaire for a slip and fall case [10/5/09: That page, from a company called Beacon Network Investigations, with a list of various questions, has now been altered] to get the basic information you need. When I see one of these, I always cross-check it against my own to see if I can improve the one I use.

Note that it is not comprehensive. It’s missing, for example. the date/time/place. And every intake sheet in a personal injury case should ask if the client has filed for bankruptcy or intends to. (Because if they do, any potential suit belongs to the bankruptcy trustee, not the injured person.). Nevertheless, it’s always good to see if one’s own intake forms can be improved or refreshed by looking at others.

Next up is an article on snow and ice cases written by Scott Kreppein for a local lawyer’s quarterly that he has reprinted. Cases regarding injuries from falls on snow and ice get tossed out by the courts all the time (see, for example, Sip and Fall on Ice/Slush – Case Dismissed) because a storm is still in progress or for other reasons. It’s important to know this stuff before the client interview, so that the attorney can do a proper analyses and not find him or herself with an unhappy client and unhappy bank account a year or two later. A good post to copy and save, and one that includes additional practitioner tips.