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Erroneous Admission of Hearsay and Expert Testimony Re: ANSI Standards Required Reversal of Million Dollar Verdict in Slip and Fall Case

In reversing a million dollar verdict in a slip and fall case, the Second Department determined that a hearsay statement (“oh my God, someone else fell”) and expert testimony about the floor mats not complying with American National Standards Institute [ANSI] standards should not have been admitted:

…[T]he security guard’s statement did not qualify as a present sense impression or an excited utterance. The statement was not admissible as a present sense impression because it is clear that the statement was not made as the security guard perceived the happening of the accident, and there was no evidence that corroborated his statement… . Regarding the excited utterance exception, the plaintiff was required to demonstrate that “at the time of the statement the declarant was under the stress of excitement caused by an external event sufficient to still [his] reflective faculties and had no opportunity for deliberation”… . Here, the plaintiff failed to meet that burden. Therefore, it was error to admit the hearsay testimony concerning the out-of-court statement of the security guard.

The Supreme Court also erred in allowing the plaintiff’s expert to testify, in effect, that the defendants’ conduct regarding the placement of mats was negligent because it allegedly did not comply with regulations promulgated by the American National Standards Institute (hereinafter ANSI). “[ANSI] standards do not constitute statutes, ordinances, or regulations”… . Although the court did not charge the jury regarding ANSI standards, by permitting such testimony, it allowed the jury to improperly speculate that the defendants’ conduct should be measured against a higher standard of care than is required under the common law… . Gonzalez v City of New York, 2013 NY slip Op 05614, 2nd Dept 8-14-13

 

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