How does an attorney prove negligence in a trip & fall case?  Failures in such proof provide a steady steam of legal malpractice inquiies, and fuel much plaintiff suspicion that the law is either not fair, or that their attorney could have done a better job.

In  Grazidei v. Mezeny Inc., 4903/07; Decided: February 9, 2010; Justice Jack M. Battaglia;KINGS COUNTY; Supreme Court we find the following discussion of the law of trip & fall:

"As summarized by Mezeny, Defendants contend that they are entitled to summary dismissal of Plaintiff’s Verified Complaint "because the evidence demonstrates that [Plaintiff] did not know what caused her to fall and to the extent she now claims that she fell on the single step, a single step is not [an] inherently dangerous condition." (Affirmation, ¶8.) Defendants contend, in effect, that Plaintiff cannot establish the existence of an unreasonably dangerous condition on the premises, or that any such condition caused her to fall. Although questions as to breach of duty conceptually precede questions as to causation, where the plaintiff cannot identify the cause of a fall, the questions are conflated and addressed in the caselaw under the rubric of proximate cause. Here, by their contention on this motion that a single step is not an unreasonably dangerous condition, after service and acceptance of the Supplemental Verified Bill of Particulars and expert disclosure, Defendants recognize that Plaintiff has identified the single step as a cause of her fall. Their complaint becomes, in the first instance, therefore, that disclosure did not reveal any evidence that would relate the single step to Plaintiff’s fall.

"In a trip and fall case, [a] plaintiff’s inability to identify the cause of his or her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation." (Antonia v. Srour, 2010 NY Slip Op 213, * 1 [2d Dept Jan 12, 2010] [internal quotation marks and citations omitted]; see also Cherry v. Daytop Vil., Inc., 41 AD3d 130, 131 [1st Dept 2007]; Jackson v. Fenton, 38 AD3d 495, 495 [2d Dept 2007].) The defendant in a trip and fall case establishes its entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, demonstrating that the plaintiff cannot identify the cause of the fall. (See Scott v. Rochdale Vil., Inc., 65 AD3d 621, 621 [2d Dept 2009]; Hunt v. Meyers, 63 AD3d 685, 685 [2d Dept 2009]; Plowden v. Stevens Partners, LLC, 45 AD3d 659, 660 [2d Dept 2007]; Lee v. J&R Electronic, Inc., 38 AD3d 501, 501 [2d Dept 2007].)

"Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident." (Constantino v. Webel, 57 AD3d 472, 472 [2d Dept 2008]; see also Cintron v. New York City Tr. Auth., 61 AD3d 803, 804 [2d Dept 2009]; Manning v. 6638 18th Ave. Realty Corp., 28 AD3d 434, 435 [2d Dept 2006].) But there must be "a sufficient nexus between the condition of the [property] and the circumstances of [the plaintiff’s] fall to establish causation" (see Cherry v. Daytop Vil., Inc., 41 AD3d at 131), that is, "a reasonable inference of causation" and not "mere speculation" (see Constantino v. Webel, 57 AD3d at 472-473; see also Lissauer v. Shaarel Halacha, Inc., 37 AD3d 427, 427-28 [2d Dept 2007] ["sheer speculation"]; Grob v. Kings Realty Assocs., LLC, 4 AD3d 394, 395 [2d Dept 2004] ["purely speculative"].)

The "unknown cause" caselaw is most appropriately applicable where a foreign object or substance on the floor or stairs is alleged to have created the danger, or some defect in construction, such as a hole or broken step. It must be applied realistically where there is an alleged flaw in structural design, since a plaintiff cannot be expected to testify with an engineer’s eye to the presence of the flaw and its likely effect in bringing about a fall.

With this in mind, the Court finds that Plaintiff’s deposition testimony is insufficient to satisfy Defendants’ prima facie burden based upon the "unknown cause" caselaw. As quoted above, Plaintiff testified that she "fell on the step," and, although she did not know "if there was anything about the step which caused [her] to fall," she described what happened. "I felt my left foot go under me…It’s like walking out straight and not knowing…If you are walking out straight you are thinking you are going to be on a flat level, and I wasn’t…It looked like I was going straight. I didn’t see any difference."

Plaintiff’s description of her fall is, at the least, consistent with a height differential, such as is presented by the single-step riser addressed in the expert disclosure. Moreover, although the "slope on the step" does not appear to be addressed in the expert disclosure, Plaintiff’s testimony about it clearly points to the step itself as the cause of her fall.

Assuming, however, that Defendants have made a prima facie showing under the "unknown cause" caselaw, then the affidavits of Plaintiff and her expert engineer, submitted in opposition, are sufficient to raise triable issues as to whether the absence of handrails "constituted a violation of the subject building code ordinances, and whether the lack of handrails was a proximate cause of the accident." (See Spallina v. St. Camillus Church, 53 AD3d 650, 651 [2d Dept 2008].) Plaintiff asserts that "[w]hen [her] right foot buckled, [she] reached to [her] right for something to stop [her] from falling but there was nothing to hold onto and [she] fell to the ground." (Affidavit of Nancy Grazdei, ¶4.) "Even if the plaintiff’s fall was precipitated by a misstep, given her testimony that she reached out to try to stop her fall, there is an issue of fact as to whether the absence of a handrail was a proximate cause of her injury." (See Antonia v. Srour, 2010 NY Slip Op 213, at * 1; see also Christian v. Railroad Deli Grocery, 57 AD3d 599, 601 [2d Dept 2008]; Scala v. Scala, 31 AD3d 423, 425 [2d Dept 2006].) The expert’s affidavit tracks the 3101 (d) disclosure, and specifically addresses the absence of a handrail at the subject premises.

Defendants contend that the Court should not consider Plaintiff’s affidavit as it relates to the absence of a handrail to find a triable issue, because she did not testify at her deposition that the absence of a handrail contributed to her fall. They contend that Plaintiff’s affidavit "present[s] feigned issues of fact designed to avoid the consequences of [her] earlier deposition testimony, and thus [is] insufficient to defeat the defendants’ motion." (See Hunt v. Meyers, 63 AD3d at 685-86]; see also Wilson v. Prazza, 306 AD2d 466, 467 [2d Dept 2003].) There is nothing in Plaintiff’s affidavit that contradicts her deposition testimony, and the most that could be argued is that she would have been expected to mention the absence of a handrail as contributing to her fall. But the Court disagrees that the relevant questions asked, most of which are quoted above, would have elicited such a response. Moreover, it is debatable whether a layperson would immediately think of the lack of a handrail as the cause of a fall.

Defendants may yet succeed in at least removing the single-step issue from the case, if they are correct that "a single step is not an inherently dangerous condition." (Affirmation, ¶8.) But Defendants clearly overstate the significance of the caselaw on the issue. A defendant may establish its entitlement to judgment as a matter of law with evidence that a single step is both "open and obvious and not inherently dangerous." (See Bretts v. Lincoln Plaza Assoc., Inc., 2009 NY Slip Op 8771, * 1-* 2 [2d Dept Nov 24, 2009]; Groon v. Herricks Union Free School District, 42 AD3d 431, 432 [2d Dept 2007]; Luciano v. 144-18 Rockaway Realty Corp., 32 AD3d 505, 506 [2d Dept 2006].) Where a sufficient showing is not made, however, the defendant will be denied summary judgment. (See Kempter v. Horton, 33 AD3d 868, 869 [2d Dept 2006].) The caselaw on single steps or other height differentials is consistent with premises liability authority generally that, in the absence of a warning, the defendant seeking summary dismissal must demonstrate "as a matter of law, that the condition was both open and obvious and not unreasonably dangerous." (See Holly v. 7-Eleven, Inc., 40 AD3d 1033, 1033 [2d Dept 2007] [emphasis added]; see also Selig v. Burger King Corp., 66 AD3d 986, 986 [2d Dept 2009].)

And so, in a case involving an interior single-step riser, the defendant made a sufficient showing with evidence that "[t]here was a gold-color nosing on the step and the pattern of the tiles on the top of the steps was different from the pattern of the tiles below the steps"; and "[t]here was also a sign stating "Watch Your Step" adjacent to the step." (See Bretts v. Lincoln Plaza Assocs., Inc., 2009 NY Slip Op 8771, at * 1-* 2.) And where there was a single step in a hallway, the defendant made a sufficient showing with photographs revealing that "a yellow line had been painted across the top of the step to alert passersby of the height differential and that, also present, to the side, was a short ramp, allowing passersby to circumvent the step altogether." (See Groon v. Herricks Union Free School District, 42 AD3d at 432.)

Here, Defendants make no showing that the single step in front of the doors to the restaurant is either open and obvious or not inherently dangerous. Although defendant Prime Holdings does include photographs in its motion papers, they are not authenticated or otherwise shown to be admissible as evidence (see Corsi v. Town of Bedford, 58 AD3d 225, 228-29 [2d Dept 2008]), and they are not supported by any opinion, lay or expert, admissible or not, on the controlling issues.

Defendants cannot, therefore, obtain summary dismissal under either the "unknown cause" or single-step caselaw."