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PLAINTIFF’S EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY IN THIS SLIP AND FALL CASE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defendants’ verdict in this slip and fall case, determined plaintiff’s expert should have been allowed to testify:

The plaintiff Wendy Robins (hereinafter the injured plaintiff) fell after stepping onto a curb adjacent to an unfinished driveway apron leading to an underground parking garage in a condominium building that was under construction … . …

“[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” … . The admissibility and scope of expert testimony is a determination within the discretion of the trial court … .

Here, the Supreme Court improvidently exercised its discretion in precluding the testimony of the plaintiffs’ proposed expert witness as to industry safety standards relating to the construction of sidewalks … . Contrary to the defendants’ contention, the record shows no appreciable difference between the unfinished driveway apron where the injured plaintiff fell, which was left open to pedestrians, and the adjoining unfinished sidewalks, which were barricaded by a fence and barrels. Moreover, the absence of a violation of a specific code or ordinance is not dispositive of the plaintiffs’ allegations based on common-law negligence principles … . Had the plaintiffs’ expert been permitted to testify, he could have addressed whether, under the circumstances presented, the defendants’ failure to barricade the driveway apron or otherwise warn pedestrians of its unfinished condition was a departure from generally accepted customs and practices and whether the defendants were negligent in failing to do so … . Robins v City of Long Beach, 2021 NY Slip Op 01277, Second Dept 3-3-21​

 

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