Premises Liability Claim Brought by Plaintiff After Tripping Over a
Sidewalk Defect*
Case
Summary:
This is a review of a premises
liability claim in
which a New York City police officer was injured during a patrol. While
walking his
beat, he had tripped over a protrusion from the sidewalk and fell,
fracturing his right ankle.
The police officer sued the City of New York and,
eventually, the
property owner of the building adjacent to the piece of the sidewalk
where he fell. The building owner responded by filing an Order to Show
Cause and a Motion
for Summary Judgment.
Statement of Facts...
On March 6th, 2011, police officer Dave Velder was
on duty walking
his beat near 52nd Street and Broadway in New York City. As he was
walking, he suddenly
tripped
and fell over a metal cap which was
protruding up and out of the sidewalk. The fall resulted
in severe pain
and discomfort which prevented him from being able to stand.
Some passersby saw Velder fall and came to his
aid. Velder radioed
in for assistance and within a few minutes a New York City
ambulance arrived. Velder was taken to Mount Sinai Hospital where he
was treated. There an orthopedic surgeon ordered both an MRI and a CAT
scan.
The results of the tests showed Velder suffered
compound fractures
to the tibia and fibula bones in his right leg, as well as a tear to
his Achilles' tendon.
At
first Velder filed a lawsuit against the City and not the owner
of the adjacent building, Division Ten. Velder alleged the
City alone
was responsible for the maintenance of the sidewalk.
The
City responded by denying liability for Velder’s
injuries, stating the metal cap he fell over was part of a
water line
which fed the building owned by Division Ten. As a result they said
Division Ten should be liable,
and not the City.
Because of Court delays, Division Ten wasn’t
brought into
Velder’s lawsuit until 120 days had elapsed since the original
lawsuit had been filed.
Division Ten prepared a Motion for Summary Judgment
alleging
although its property abutted the sidewalk, it didn’t own the
sidewalk, nor was it responsible for its maintenance. Division Ten
asked the Court to grant their Motion and dismiss the case against
them.
The problem though was that New York State had a
law which
prohibited a defendant from filing a Motion for Summary Judgment
after
120 days passed from the filing of the original lawsuit. Division Ten
wasn’t brought into the lawsuit
until the 120th day.
They knew
they didn’t have enough time to prepare and file a Motion for
Summary Judgment against the City, and they quickly prepared an Order
to Show Cause
requesting the Court grant them additional time to file
their Motion.
Requests for Orders
to Show Cause are sometimes used in premises
liability claim injury lawsuits as well as other civil
lawsuits. Many times they are filed as emergency
measures.
Orders
to Show Cause are different from other motions in that
they only require one party to be present at the hearing. After the
court decides the motion, it will come back to it a period of time
later and listen to any arguments from the opposing party. The Court
can then decide to either uphold its decision or reverse it.
Because only one party needs to be present, Orders
to Show Cause can
proceed faster than a normal motion. They are also one of the few ways
in a premises liability
claim for one party to interact with the court
without having to notify the opposing side first.
The Court heard Division Ten’s request for an
Order to Show
Cause. The hearing was held without the City knowing about or being
present to argue against it.
The Court granted Division Ten’s Order and
extended the time
period for Division Ten to file its Motion for Summary Judgment an
additional 90 days.
Motion for Summary Judgment...
A Motion for Summary Judgment is a legal tool
usually filed by a
defendant in a lawsuit. It
is a statement to the Court saying the
Plaintiff’s lawsuit really doesn’t allege any material
facts or issues to be tried, and that allowing the case to
go to trial
would be a waste of the Court’s and the defendant’s time.
Once a defendant files his Motion for Summary
Judgment, the burden
shifts to the plaintiff to show he does have sufficient material facts
to establish a prima
facie case.
Having a prima facie case for Velder meant he had
to place into
evidence enough facts so there was at least a presumption that Division
Ten or the City may have actually done something wrong, which then
resulted
in Velder’s injuries.
Specifically, to
get his premises liability claim to trial, Velder
had to show:
- Division Ten, the City, or both owed Velder a
"duty of reasonable
care";
- That they breached that duty of care;
and
- That breach resulted in Velder’s injuries.
Outcome...
In this case the Court found Velder’s evidence
was
sufficient to prove both Division Ten and the City owed Velder a duty
of reasonable care, and that they breached that duty, resulting in
Velder’s injuries.
The jury decided
in favor of Velder, awarding him
the amount of
$150,300.
Important
Points...
- An Order to Show Cause
is a legal remedy which can
be relied on if
it appears the other side in a lawsuit is about to do something
illegal, inappropriate, or dishonest. It may also be used to grant
other extraordinary relief in personal injury cases.
- In a premises liability claim
lawsuit, it is
incumbent upon a
plaintiff to place into evidence sufficient facts to show he
established a Prima Facie case.
If his evidence is composed of merely
conjecture, innuendo, or supposition, and void of facts sufficient to
raise some question about whether the defendant owed him a duty of
reasonable care and the defendant breached that duty resulting in a
plaintiff’s injuries, his case me be dismissed even before it
even begins, or when a jury finds in favor of the defendant.
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*This
case example is for educational purposes only. It is based on actual
events although names have been changed to protect those involved. Any
resemblance to real persons or entities is purely coincidental.
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