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March 18, 2015

Appellate Division Dismisses Trip-and-Fall Complaint Where Plaintiff Could Not Identify Cause of Fall

In a trip-and-fall case, a defendant may establish entitlement to judgment, as a matter of law, with evidence that the plaintiff is unable to identify the cause of his or her fall without engaging in speculation. In Goldberg v. Village of Mount Kisco, 2015 NY Slip Op 01608 (2d Dep't Feb. 25, 2015), the plaintiff alleged that he tripped and fell over exposed tree roots on an unpaved path in a park owned and maintained by the defendants. At his deposition, the plaintiff testified that he did not see tree roots prior to or immediately after falling, and that he did not "feel anything that caused him to fall." Following the close of discovery, the defendants moved for summary judgment dismissing the complaint, on the basis that the plaintiff could only speculate as to the cause of his fall. Supreme Court denied the motion.

On appeal, the Appellate Division, Second Department reversed and granted the defendants' motion. The Court reasoned that the defendants had established their entitlement to judgment as a matter of law through the submission of the plaintiff's deposition testimony and that the plaintiff had failed to raise a triable issue of fact. More particularly, the affidavit of an individual who was walking alongside the plaintiff at the time of the fall was insufficient because the individual did not state that he observed the plaintiff trip and merely observed that there were tree roots in the path. Thus, his conclusion that tree roots were the cause of the fall was purely speculative. Furthermore, a police report submitted in opposition to the motion was insufficient to raise a triable issue of fact because it contained inadmissible hearsay.

Goldberg is a reminder that defense counsel should examine plaintiffs and eyewitnesses carefully on the details of trip-and-fall and slip-and-fall accidents. The decision is noteworthy in that the Court dismissed the complaint as a matter of law (i.e., without the need for an evidentiary hearing or trial) because there was no evidence supporting the alleged cause of the plaintiff's fall.

If you require further information regarding the content of this Legal Alert, please contact Thomas B. Cronmiller, Chair of the Torts & Products Liability Defense Practice Area, at (585) 295-4424 or


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