Slip and fall cases are a major part of the personal injury oeuvre, and personal injury litigation remains a large part of the world of the bar.  Accordingly the laws of personal injury, and specifically those relating to trips and falls are widely known and highly important.  Mistakes and bad outcomes in personal injury litigation often lead to legal malpractice litigation.

One perennial problem in trips and falls is causation. The problem arises in the tension between whether one should have seen a defect, and proving that the defect was significant enough to cause the fall.  In sidewalk negligence, there is the principal of a defect that is "de minimus" and as a matter of law insufficient to support a negligence claim.

In Hamoudeh v Mandel ;2009 NY Slip Op 04195 ;decided on May 26, 2009 ; Appellate Division, Second Department we see the effect of plaintiff stating in a deposition [likely in the underlying action] that  he did not see what caused him to fall.  Whether this was the result of the attorney’s affirmative coaching, the attorney’s negligence failure to prepare plaintiff for a deposition, or the truth, it was fatal to both the underlying personal injury action and the legal malpractice action.
 

"During a deposition, the plaintiff stated that he did not know what had caused him to fall. The defendants moved for summary judgment, contending that the plaintiff would not have prevailed in the underlying action even if they had timely commenced an action. The Supreme Court denied the motion. We reverse.

To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff actual and ascertainable damages" (Maiolini v McAdams & Fallon, P.C.,AD3d, 2009 NY Slip Op 02755, *2 [2d Dept 2009] [citations omitted]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (id. [citations omitted]; see also Pedro v Walker, 46 AD3d 789; Lichtenstein v Barenbaum, 23 AD3d 440; Porello v Longworth, 21 AD3d 541; Dimond v Kazmierczuk & McGrath, 15 AD3d 526; Iannarone v Gramer, 256 AD2d 443, 444).

Here, the defendants established, prima facie, that even if they had commenced a timely action, the plaintiff would not have been successful on the merits, since he could not identify what had caused him to fall (see Costantino v Webel, 57 AD3d 472; Karwowski v New York City Tr. Auth., 44 [*2]AD3d 826; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434; Golba v City of New York, 27 AD3d 524; Tejada v Jonas, 17 AD3d 448). In opposition, the plaintiff failed to raise a triable issue of fact (see Denicola v Costello, 44 AD3d 990; Tejada v Jonas, 17 AD3d 448; Sanchez v City of New York, 305 AD2d 487). "