You can have a great argument - even the BEST argument - for why a property owner should be held responsible for a defective condition on the driveway fronting his premises. But unless you have an expert willing to come forward to back up your theory, there are many instances where a New York court will be obliged to dismiss your slip or trip and fall case.
And that is precisely what happened in the February 20, 2014 decision in SebrinaTrent-Clark v. City of New York.
In that case, the plaintiff tripped and fell over a defective portion of the driveway fronting the defendant's property. In opposition to the defendant's motion to dismiss the case on the grounds that they didn't create the defective condition, nor did they know about it before the accident, the plaintiff argued that the defendant had a "special use" for this driveway, and that the defective condition/depression was caused by the excessive weight borne by that area due to the traffic in the defendant's parking lot.
The Appellate Division, First Department didn't buy that argument, and affirmed the trial court's dismissal of the case, stating as follows:
"Although a driveway running over a sidewalk constitutes a special use, there is no evidence that the defect alleged here was caused by cars driving over the curb for Chase's sole commercial benefit (see O'Brien v Prestige Bay Plaza Dev. Corp., 103 AD3d 428, 429 [1st Dept 2013]; see also Balsam v Delma Eng'g Corp., 139 AD2d 292, 299 [1st Dept 1988], lv dismissed in part, denied in part 73 NY2d 783 ). Plaintiff's argument that the weight of the traffic from the driveway may have been a cause of the accident, is unavailing. The argument is speculative and based solely upon her attorney's affirmation. Plaintiff failed to submit any expert affidavit or testimony as to the cause or alleged nature of the defect and Chase's culpability therefor (see Joseph v Pitkin Carpet, Inc., 44 AD3d 462, 464 [1st Dept 2007])."
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