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IN THIS SLIP AND FALL CASE, THE JURY PROPERLY FOUND THE LANDLORD NEGLIGENTLY FAILED TO MAINTAIN A HANDRAIL BUT THE LOOSE HANDRAIL WAS NOT A PROXIMATE CAUSE OF THE FALL (SECOND DEPT). ​

The Second Department, over a dissent, determined the jury in this slip and fall case properly rejected plaintiff’s testimony because it was inconsistent. The jury found that the landlord negligently failed to maintain a handrail which had become loose, but that the loose handrail was not a proximate cause of plaintiff’s fall:

Given the nature of the plaintiff’s testimony, there is no basis to disturb the jury’s determination. “Where, as here, ‘there is a reasonable view of the evidence under which it is not logically impossible to reconcile a finding of negligence but no proximate cause, it will be presumed that, in returning such a verdict, the jury adopted that view'” … .

Moreover, the jury was not required to accept the testimony of the plaintiff’s expert to the exclusion of the facts and circumstances provided by other testimony and evidence—including the plaintiff’s own inconsistent version of the accident … . Although the plaintiff’s expert opined that the proximate cause of the accident was the loose handrail, the expert admitted at trial that the plaintiff’s testimony that she was disposing of a bag of garbage prior to the accident was not included in his report. Thus, the jury was free to reject the opinion proffered by the plaintiff’s expert despite the absence of a defendant’s expert. Galeano v Giambrone, 2023 NY Slip Op 03909, Second Dept 7-26-23

Practice Point: Because of the plaintiff’s inconsistent testimony about how she fell, the jury properly rejected her testimony as well and the plaintiff’s expert’s testimony, despite the absence of a defense expert. The jury could have properly determined the landlord was negligent in failing to maintain a handrail, but the loose handrail was not a proximate cause of the plaintiff’s fall.

 

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