DUBOIS v. JENRICH (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Edward T. McLoughlin, J.), dated October 26, 2022.  The order, insofar as appealed from, granted the defendant's motion for summary judgment dismissing the amended complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for injuries she allegedly sustained when she tripped and fell while walking on the back deck of the defendant's home in Ghent.  The defendant moved for summary judgment dismissing the amended complaint on the ground that the plaintiff was unable to identify the cause of her fall without engaging in speculation.  In an order dated October 26, 2022, the Supreme Court, inter alia, granted the defendant's motion.  The plaintiff appeals.

“ ‘Ordinarily, a defendant moving for summary judgment in a trip-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it.  However, a defendant can make its prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation’ ” (Adzei v. Edward Bldrs., Inc., 221 A.D.3d 639, 640, 198 N.Y.S.3d 755, quoting Grande v. Won Hee Lee, 171 A.D.3d 877, 878, 97 N.Y.S.3d 230 [internal quotation marks omitted]).  “ ‘A plaintiff's inability in a premises liability case 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’ ” (Belmonte v. City of New York, 220 A.D.3d 727, 728, 197 N.Y.S.3d 554, quoting Chang v. Marmon Enters., Inc., 172 A.D.3d 678, 679, 99 N.Y.S.3d 397;  see Deputron v. A & J Tours, Inc., 106 A.D.3d 944, 945, 964 N.Y.S.2d 670).  “ ‘Where it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation’ ” (Belmonte v. City of New York, 220 A.D.3d at 728, 197 N.Y.S.3d 554, quoting Colini v. Stino, Inc., 186 A.D.3d 1610, 1611, 129 N.Y.S.3d 826 [internal quotation marks omitted]).  “Although ‘[p]roximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident, ․ mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action’ ” (Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594, quoting Costantino v. Webel, 57 A.D.3d 472, 472, 869 N.Y.S.2d 179;  see Manavazian v. Pietromonaco, 188 A.D.3d 866, 867, 135 N.Y.S.3d 476).

Here, the defendant demonstrated his prima facie entitlement to judgment as a matter of law by establishing that the plaintiff was unable to identify what caused her to fall without engaging in speculation.  The plaintiff's bill of particulars identified the cause of the plaintiff's fall as a “step/unlevel surface.”  At her deposition, the plaintiff testified that she “went to step up and somehow I landed on my face.”  When asked if she knew what caused her to fall, the plaintiff responded “no,” and further testified that she did not look to see what caused her to fall at the time of the accident.  The plaintiff also testified at her deposition that five days after the accident she observed a nail sticking up from the deck, and that she fell because her right foot “caught” on that nail.  However, when asked how she knew the nail caused her to fall, the plaintiff stated, “Well, I don't know, however, it's there.”  Even viewing this evidence in the light most favorable to the plaintiff and according her the benefit of all reasonable inferences, any conclusion that a nail caused the plaintiff to trip and fall, rather than a misstep or loss of balance, would be based on speculation (see Lucas v. Genting N.Y., LLC, 227 A.D.3d 795, 211 N.Y.S.3d 195;  Mallen v. Dekalb Corp., 181 A.D.3d 669, 121 N.Y.S.3d 331;  Vojvodic v. City of New York, 148 A.D.3d 1086, 1087, 51 N.Y.S.3d 534;  Louman v. Town of Greenburgh, 60 A.D.3d 915, 916, 876 N.Y.S.2d 112).

In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Mallen v. Dekalb Corp., 181 A.D.3d 669, 670, 121 N.Y.S.3d 331).  Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the amended complaint.

BARROS, J.P., MILLER, FORD and DOWLING, JJ., concur.