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The Rogak Report: 01 Nov 2006 ** Premises Liability - Stairs - Mobile Homes **

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  • Lawrence Rogak
    BUILDING CODES DO NOT APPLY TO STEPS LEADING INTO MOBILE MEDICAL UNIT Pena v. Women s Outreach Network Inc., NYLJ 11/01/06 (1st Dept 2006) Plaintiff fell from
    Message 1 of 1 , Nov 1, 2006
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      Pena v. Women's Outreach Network Inc., NYLJ 11/01/06 (1st Dept 2006)

      Plaintiff fell from a stairway while exiting a medical van where she
      had undergone a mammogram administered by defendant Women's Outreach
      Network (WON). The van, a used RV that WON had converted into a
      medical van in order to provide its services on a mobile basis, had
      two sets of stairs, one for entry and the other, in the rear, for
      exit. The rear exit stairs consisted of three fixed interior steps
      and two exterior metal steps that, by use of a lever, extended from
      underneath the van. The metal steps had treads. There was a metal
      pipe at the back door of the van to hold onto when exiting.

      On October 9, 1999, the van was in the parking lot of St. Joan of Arc
      Church in the Bronx, where WON was offering mammograms, free of
      charge, to anyone in the neighborhood. At about 11 a.m., plaintiff
      entered the van and was administered a mammogram. After the
      procedure, she proceeded to exit the van through the open back door
      when, as she described it, "I stepped down on the first metal stair
      with my right foot [and] then went forward to place my left foot on
      the second metal step when my right shoe became stuck on the step. I
      then lost my balance and fell onto the parking lot. My right shoe
      remained on the step."

      "Plaintiff was unable to identify any cause of the accident other
      than her shoe, which she described as flat heeled, becoming caught on
      the step. As a result of the fall, plaintiff sustained injuries
      including, among other things, a fracture of the right foot, which
      required three surgical procedures. She has required the use of a
      cane to walk since the accident."

      Defendant moved for summary judgment and argued that, as the evidence
      showed, it neither created any purported defective condition on the
      stairs nor had notice of such condition.

      Plaintiff opposed, stating that her fall was due to the defective
      nature of the medical van's steps, as to which defendant had, at a
      minimum, constructive notice. Plaintiff pointed to the deposition
      testimony of WON's employees on duty at the time of the accident.
      Each testified that the subject stairs were in the same condition in
      the photographs as they were on the date of the accident. Plaintiff
      pointed to the absence of a guardrail or handrail on the rear steps
      and argued that the treads on the metal steps "were inappropriate and

      In support of her claim of defective stairs, plaintiff submitted an
      affidavit from Robert Schwartzberg, a professional engineer, who,
      after reviewing pictures of the steps, found that treads on the metal
      steps were "worn and discolored" due to foot traffic and "expos[ure]
      to the elements over a prolonged period of time." He also noted the
      absence of a guardrail alongside the steps in the van's interior and,
      although there was a handle mounted to the exit door and "a metal
      pipe and rod type assembly outside the [van] and on the opposite side
      of the stairway from the door," "[n]either the handle [n]or pipe
      assembly . . . protruded into or over the length of the treads or
      were positioned exactly in line with the ends of the treads."

      Schwartzberg was of the opinion that "there existed unsafe conditions
      at the subject stairway in the form of unguarded and open treads at
      the ends thereof, a failure to provide riser heights and tread widths
      of uniform dimension and a failure to install handrails or guardrails
      in an appropriate manner," all of which should have been apparent to
      defendant. In referring to various sections of the State Building
      Code and the Uniform Fire Prevention and Building Code, Schwartzberg
      also noted that the stairs were not in compliance with good and
      accepted practice.

      In reply, defendant pointed out that the State's Building Code
      was "clearly inapplicable to the subject medical van."

      Supreme Court, Bronx County, held that plaintiff, while claiming that
      her shoe became stuck on a step as she exited the van, failed to
      establish a defect. The court also rejected Schwartzberg's opinions
      based on an inapplicable Building Code. The Appellate Division

      "Plaintiff has failed to establish that defendant caused, created or
      had notice of an allegedly dangerous or hazardous condition. In order
      to establish notice of an allegedly dangerous condition, plaintiff
      must, at a minimum, raise a triable issue of fact that the condition
      complained of was a dangerous or defective one."

      "Here, in moving for summary judgment, defendant made a prima facie
      showing that there were no disputed facts that the exit stairs were
      not in a dangerous or defective condition. It produced evidence in
      admissible form, namely, plaintiff's deposition testimony, that she
      did not know what caused her accident and could not identify any
      defect on the stairs. The photographs of the stairs similarly failed
      to depict any dangerous or defective condition. In opposition,
      plaintiff merely made conclusory allegations that the stairs
      were 'inappropriate and inadequate.'"

      "While plaintiff argues that her deposition testimony creates an
      issue of fact as to the dangerous condition of the stairs, clearly it
      does not. Her testimony on this subject is as follows:

      Q: After you finished having the mammogram taken, what happened next?

      A. I was on my way out, and when I started to walk down through the
      steps, my shoe got stuck and then I fell.

      * * *

      Q: Do you know what it got caught on?

      A: Not exactly, I didn't see what caused it to get caught.

      * * *

      Q: Other than getting your shoe stuck on the stair, did you have any
      other problems with the stair before the accident happened?

      A: No.

      * * *

      Q. Did you observe anything on the stairs before your accident

      A: No.

      * * *

      Q: Immediately after the accident happened, did you have an
      opportunity to look at the steps again?

      A: Yes, I saw it, and I looked at it like this, and I could see the
      shoe that was still caught up in the step.

      Q: other than seeing your shoe on the stair, did you notice anything
      else about the stairs?

      A: No.

      "Plaintiff's supporting affidavit fails to add any further details as
      to the cause of the accident, merely stating that plaintiff's shoe
      became stuck on the step, as a result of which she lost her balance
      and fell onto the parking lot. That plaintiff's shoe became stuck on
      the step does not show a defect or establish liability."

      "Nor does the affidavit submitted by plaintiff's expert, who never
      examined the steps but relied instead on plaintiff's testimony, the
      bill of particulars and the photographs, create an issue of fact as
      to the existence of a dangerous, defective or hazardous condition on
      the stairs. From the mere fact that plaintiff's shoe became stuck in
      the stairway treads, the expert concluded that the treads
      were 'inappropriate' and were therefore defective. This simplistic
      deduction of cause from effect fails to show a defect, much less
      fault. This is not a case for the application of the doctrine of res
      ipsa loquitur, from which an inference of negligence may be drawn
      from the mere happening of an accident."

      "Plaintiff's expert also concludes that the difference in the height
      of the stairway risers, the rounded treads and the lack of handrails
      show that the stairway was in a defective condition. He fails,
      however, to show how or why these conditions constitute a dangerous
      or defective condition, and makes no attempt to show that these
      conditions caused plaintiff's shoe to become stuck in the step. He
      does not even allege that a handrail or a warning as to its absence
      or the existence of worn treads would have prevented the accident.
      Merely demonstrating the lack of handrails will not stave off summary
      judgment. Nor does evidence of worn treads imply a dangerous
      condition, especially in the absence of testimony causally connecting
      the worn treads to the accident. An expert's conclusory and
      speculative opinion is insufficient to defeat summary judgment."

      "Finally, the expert's references to various State Building Code and
      Uniform Fire Prevention and Building Code provisions setting forth
      standards for staircases and stairwells for buildings, which, he
      submits, the van's rear staircase failed to meet, are irrelevant. As
      Supreme Court found and plaintiff concedes, the cited Code provisions
      do not apply to the stairway at issue. "

      "Inasmuch as plaintiff has failed to show the existence of a
      defective or dangerous condition, the issue of notice is academic. We
      have considered plaintiff's other arguments and find that they are
      without merit."

      The Complaint was dismissed.

      Larry Rogak
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