One of the biggest challenges in a trip and fall case (or even a slip and fall case) in New York is that you, as the plaintiff, must be able to identify what caused your fall - whether by your own testimony, or that of another witness. Naturally, this raises the inherent problem that if you saw the defect, why did you trip or slip on it - or, on the flip side of that same coin - if you didn't see it, how can you be sure that defect is what caused your fall?


Anyway, I digress. The question is why you cannot guess as to what caused your fall.


Why a Slip/Trip and Fall Plaintiff Must Identify the Cause of His/Her Fall


In truth, the answer to this question should be relatively self-evident: absent competent evidence as to what caused your fall, it would be manifestly unfair to hold a defendant responsible for your injuries, particularly considering that without that evidence, it remains entirely possible that your fall was caused by something - or someone - that was completely outside the control or responsibility of the defendant.


To that end, New York's courts have summarized the rule as follows:


"[A] defendant in a trip-and-fall case can establish its prima facie entitlement to judgment as a matter of law by demonstrating the plaintiff's inability to identify the cause of the accident (see Bottiglieri v. Wheeler, 38 AD3d 818, 818 [2d Dept 2007]). "[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (Patrick v. Costco Wholesale Corp., 77 AD3d 810, 810 [2d Dept 2010]). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise a triable issue of fact regarding his ability to identify the cause of the fall. It is well-settled, however, that "rank speculation is not a substitute for the evidentiary proof in admissible form that is required to establish the existence of a triable question of material fact" (Castore v. Tutto Bene Restaurant Inc., 77 AD3d 599, 599 [1st Dept 2010])."



Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer