Court
Rejects Attempt To Blame Defective Stairs for Accident
As
a Result of Hurricane Irene
As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision granting summary judgment.
Three
years after Hurricane Irene, cases that arose from the storm are still being
decided. As with most cases, plaintiffs
attempt to find reasons to blame their accident on something other than their
own negligence and inattention. A recent
case in which we represented the defendant and won summary judgment
demonstrates this.
In Konviser
v. Davos Pointe Condominium Associations, the plaintiff, a 79 year-old
woman, slipped and fell as she went up an exterior stairway to her neighbor's
apartment to retrieve a newspaper in front of the door. Although she has done this in the past
without incident, on this day as she was descending the wet steps wearing
slippers and holding the rail, her feet "floated" out from under her
and she fell down. Plaintiff claimed
that the steps were slippery because of water from Hurricane Irene. Plaintiff sued, claiming that the stairs were
dangerous and defective, and that the defendants had actual or constructive
notice of the dangerous condition.
Defendants moved for summary judgment.
The
treasurer of the condominium who supervised maintenance, testified that there
had been no complaints about the stair treads and there had been no changes to
the staircase in question. The
maintenance director of the condominium testified that he had not seen any warped
stairs treads nor replaced any stairs treads in the 25 years that he had been
employed there, and had received no complaints about the warped stairs. In opposition, the plaintiff submitted an
affidavit from an engineer who examined the steps and stated that the stairs
were defective with building code violations which caused the plaintiff to slip
and fall. The engineer concluded that
the defendants had notice of the defective condition by noting that the stairs
were painted after warping. Defendants'
expert, a professional engineer, testified that the stairs were appropriate,
were not warped and did not violate any building code. The defendants' engineer noted that a wet
step would be slippery.
The
Court rejected plaintiff's
contention that the "storm in progress" doctrine does not apply to
rain, but only to snow and ice. The
Court found that "while plaintiff may be correct that snow and ice are
different from rain, that is a distinction without a difference because
plaintiff does not show that defendant could have done anything to abate the
wet condition when it was raining during a hurricane". The Court also found that the plaintiff had
not established that the defendant had notice of a defect, if one existed, and
noted that the plaintiff had safely negotiated those steps in both directions
and that the only difference here was that the stairs were wet from the storm.
The
Court's decision is a common sense rejection of a plaintiff's attempt to blame
her accident on a set of stairs her expert found "defective". The Court rather noted that plaintiff had
gone up and down these steps before, with no problem. Of course, wearing slippers on wet stairs was
the real negligence here. When claims
adjusters allow their defense attorneys to make summary judgment motions,
judges will dismiss cases. This teaches
plaintiff's attorneys not to bring questionable cases which reduces claims and
indemnity payments.
Should
you have any questions, please call.
Thomas M. Bona
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