Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark
Your Legal Options in a Fatal Slip and Fall Accident
In this very unfortunate case the plaintiff was a older woman who was allegedly caused to fall down the stairs and became incapacitated and died as a result. The question becomes what is needed to prove the case and what are you supposed to do to preserve the much needed evidence or testimony at trial.
This case represents the outer bounds and farthest possible example of the impossibility to prove your case when the plaintiff is actually caused to die or is killed in a slip and fall. The facts are outlined as follows:
The Facts of the Deadly Slip and Fall Accident
On a clear and dry afternoon in January 2009, plaintiff, then sixty years old, was descending the wooden set of stairs leading from her condominium to the sidewalk when she fell and suffered catastrophic injuries. No one witnessed the accident and plaintiff’s injuries left her unable to testify. Plaintiff’s downstairs neighbor did, however, hear a noise and came outside to find plaintiff bleeding on the sidewalk at the bottom of the stairs. Plaintiff’s son certified he was present at Atlantic City Medical Center later that day when medical personnel attempted to ascertain from plaintiff what had happened to her. He averred that his mother, who “was in and out of consciousness . . . was able to tell us that she stepped one or two steps off the landing and was then caused to trip and fall forward down the 14 stairs.” Plaintiff had lived in the condominium, which she rented from defendant Mary Baldini at the time of the accident, for seventeen years. She had complained about the stairs, which served as the sole means of ingress and egress to her unit, on only one occasion four years before the accident. Records of defendant Thompson Realty, the company that manages the complex or defendant Skyline Condominium Association, the entity responsible for maintenance of that common element, note plaintiff complained of “rocky and loose steps” on September 6, 2005. Upon inspection the following day, Thompson “found the steps were loose” and retained additional defendant Tolbert Construction to make repairs. Tolbert replaced the 2 x 12 stair treads and a stringer within weeks. Inspections of plaintiff’s building by the State Bureau of Housing Inspection in 2008 and 2013 noted no violations involving the exterior stairs.
Burden of Proof in Personal Injury Cases
After the plaintiff’s executor hired an expert to provide an opinion the defense attorney filed what is called a net opinion motion to bar the expert from testifying in front of a jury. The defense attorney and subsequently the court relied on the evidentiary requirement that the slip and fall expert base his opinions on facts; i.e. words, statements, preserved testimony, a dying declaration of the plaintiff regarding what she fell on where what caused her to fall which may have been contained in a medical record.
Unfortunately in this case because nobody was with the plaintiff when she fell to make a observation and she was unable to speak immediately after the fall, no such evidence existed as to why she fell. Accordingly although the plaintiffs attorney correctly hired an expert, that expert did not have any facts to ground his opinion upon. This is called a net opinion and the courts do not allow it because it is based on pure speculation and conjecture also known as guessing.
Once the plaintiffs expert was bared from testifying at trial the plaintiff was not to meet her evidentiary burden and the defense’s motion for summary judgment was granted. The appeals court affirmed for the substantially same reasons found in the trial court’s decision.
In the future a plaintiff must take all deliberate steps to preserve evidence by way of photographs, inspection, statements in an emergency room record, or a statement to an independent investigator in the form of an affidavit if there is any concern that the plaintiff will not be available and/or pass away prior to his deposition being taken and/or trial.
The law at issue is whether the plaintiff can satisfy her evidentiary burden and be allowed to present her case to a jury.
Notwithstanding the duty, the judge found plaintiff could not establish a prima facie case of negligence because she “failed to adduce competent documentary or testimonial evidence identifying the dangerous or defective condition which caused Plaintiff to fall.”The judge rejected plaintiff’s expert’s report as a net opinion because the expert failed to “offer any opinion as to which of the identified tripping hazards was the proximate cause of Plaintiff’s fall.” See Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 299 (App. Div.) (explaining “[e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture”) (citation omitted), certif. denied, 122 N.J. 333 (1990). Acknowledging the testimony of plaintiff’s son regarding plaintiff’s statements to medical personnel about the accident, the judge noted the statement only “indicates that Plaintiff fell down but does not attribute any reason or defect as a possible cause.” Judge Kane concluded there was “no evidence to submit to the jury on the issue of causation” and because that “necessary element” was lacking, summary judgment was appropriate.