Sometimes, it pays to be lucky rather than good.
In a June 27 decision in Rodriguez v. Bd. of Educ. of the City of New York, New York's Appellate Division, First Department reversed a Bronx trial court's dismissal of a student's claim that he sustained serious injuries as the result of a slip and fall at his school. Apparently, the student slipped and fell upon a wet, juicy substance that was all over the stairs and floor. Consequently, the student predicated his claim on the City's negligent maintenance of the condition of the stairs, including inadequate lighting.
There was just one problem: He had no proof that the school either created the defective condition, or knew - or should have known - about it.
Therefore, in response to the City's motion to dismiss the case, the claimant alleged - for the first time - that he was caused to slip and fall due to various design defects including, inter alia, treads and risers of insufficient length, an improperly placed handrail and stairs not coated with nonskid materials.
For lack of a better term, that's a big no-no. You don't get to allege new theories of the case against a NY municipality for the first time in opposition to a summary judgment motion. (For additional information on this topic, please see "A Sure-Fire Way to Kill a NY Accident Case: Don't Investigate").
In any event, the plaintiff in this case survived the motion to dismiss. But I truly wonder if - or how - this plaintiff will ultimately be able to prove his case at trial, considering that he was precluded from raising this new theory of the case.