In Pinkham v. West Elm, 2016 NY Slip Op 05899 (App. Div. 1st Dept. Aug. 25, 2016), a trip-and-fall personal injury case, the Appellate Division, First Department reversed a decision denying defendants’ motion for summary judgment. That is, plaintiff loses.
From the decision:
Defendants established entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she fell off an elevated display platform in defendants’ store. Defendants submitted evidence demonstrating that the platform and steps leading to the platform were not dangerous conditions as a matter of law through photographic evidence showing that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also showed that the steps were well lit and free of debris.
Furthermore, plaintiff testified that she turned and stepped without looking down because she was seeking a sales associate and that the steps played no part in her fall. Thus, defendants met their initial burden of showing that they neither created a dangerous condition at the platform and steps, nor had actual or constructive notice of such a condition.
This decision also illustrates the risk of not including theories of recovery in a complaint or bill of particulars.
The court explained: “The report of plaintiff’s expert relies upon the expert’s theories of violation of the New Jersey Handicap Accessibility Code and optical confusion due to the monochromatic floor covering used on the platform and steps. However, plaintiff improperly raised these issues for the first time in response to defendants’ motion for summary judgment, as both her complaint and the bill of particulars fail to allege either of these theories.”