TRIP & FALL CASES

“UNKNOWN CAUSE”

Countering the “Open and Obvious” and “Not Inherently Dangerous” Arguments

If the victim of a slip or trip and fall accident is unable to identify the cause of the fall, then the general rule applied by virtually all attorneys is that there is no viable case.  It is ultimately not sustainable  to attempt  to  hold another party responsible  for one’s injury if the cause, attributable to that alleged  responsible party, is only based  on speculation.

Experienced Personal Injury Attorneys, however, will not be quick to dismiss the possibility of a lawsuit based on the first hint of an “unknown cause”.  Truth be told, what may well not be evident to the layman that was injured, may be self-evident to a more experienced eye or to an expert.  A most obvious example may be the absence of a handrail which, to the average person, may not amount to an obvious defect.  Nevertheless, the absence of a handrail could well be the basis for a successful lawsuit.

The apparent absence of a cause of an accident is common in “single step” cases.  A person falls down a  single step.  The  potential defendant argues the absence of liability both  because the step  was “open and obvious” and certainly “not inherently dangerous”.    Both of  these  positions are traditional grounds  for granting defendants “summary judgment” (dismissal) of lawsuits.  The presence of “warning signs”, advising passers-by of dangerous conditions, adds  substance  to  such  defense  positions.

It is up to the Plaintiff’s team, the attorney backed by an expert, to direct the court’s attention to any existing defect – such as lack of handrails, a dangerous  slope, a riser that violates the building code, a cracked or defective lip, etc. that would resurrect  a potentially moribund lawsuit.  What the seasoned Personal Injury Attorney will do is anticipate arguments the defense will interject, and prepare the appropriate groundwork in  both  paperwork and deposition testimony, to give support  to countering those defense positions.

Passengers Stuck on Planes

Recently, a “feeder” airline operated under the aegis of Continental Airlines, was forced to sit with its 47 passengers (on a 50 seat aircraft) on the tarmac, at a Rochester, Minnesota airport, the entire night.    This, while another flight that arrived at about the same time, operated by Delta, went to a gate supplied by the airport to unload its passengers.
This was not the first time passengers were forced to endure horrendous conditions (lack of food and drink, stale and foul smelling air, broken toilets, medical conditions untreated).  Not long ago Jet Blue let its passengers sit for over fifteen hours at John F. Kennedy Airport in New York.  There are many, many stories of stranded passengers.
The situation has been so distressful that Congress is now contemplating rules that would instruct airlines in the appropriate action under similar circumstances.   The airlines do not want to be “forced” to react in a specific way.  They want to react in a “voluntary” manner, and insist they have learned their lesson.
The neglect of the airlines in many of these situations is egregious. Far more effective than accepting an apology and a voucher for a free flight would be if all the passengers on such a flight join together in a lawsuit against the offending airline.   The cost of defending the lawsuit, the cost of the eventual judgement or settlement, and the substantial bad publicity would be as effective, if not more so, than any slap on the wrist contemplated in proposed legislation.
If anyone finds themselves in such an unfortunate situation on a plane, think about organizing such an initiative while in that predicament.  Gather the names of your fellow passengers that would be willing to participate in a lawsuit.   If nothing else, it would give you something constructive to do during the time, to while away the hours. If you have been stuck on a plane for hours, or days, call an attorney to see if there is possible case against the airline.

Welcome! This blog is provided by Orlow, Orlow & Orlow of New York. We are a father and sons law firm who provide legal representation for personal injury, workers’ compensation, construction accidents, sexual abuse and civil rights issues including police brutality. It is our hope to keep you updated on New York’s legal arena.