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PLAINTIFF WAS INJURED WHEN HE FELL THROUGH A FLOOR OPENING IN A HOUSE UNDER CONSTRUCTION, DEFENDANT HAD PLACED CARDBOARD OVER THE OPENING, THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this personal injury case should have been granted. Defendant Keleher had placed cardboard over the floor opening to the basement in this house under construction. Plaintiff, whose presence was foreseeable, and who (allegedly) was aware of the opening in the floor, fell through and landed on his back on the basement floor:

Timothy Keleher admitted at trial that he covered the hole, which measured several feet in width and length, with a sheet of cardboard in an effort to preserve the heat in the basement, where he was working. It was undisputed at trial that covering such a hole with cardboard created an unsafe condition. The evidence at trial further established that plaintiff’s presence at the property was foreseeable inasmuch as both Timothy Keleher and plaintiff testified that plaintiff stated that he would return to the property later that day. The fact that plaintiff may have returned later than was expected does not, in our view, render it unforeseeable that he would come back to the residence. Moreover, contrary to the Kelehers’ contention, the fact that plaintiff was allegedly “aware of the condition did not relieve [them] of [their] duty to maintain the [premises] in a reasonably safe condition” … . Rather, such awareness ” bears only on the injured person’s comparative fault’ ” … .

Inasmuch as plaintiff’s presence was foreseeable, the risk of serious injury was great and the burden of avoiding the risk minimal, we conclude that a finding that the Kelehers were not negligent could not have been reached on any fair interpretation of the evidence. Pasceri v Keleher, 2019 NY Slip Op 00758, Fourth Dept 2-1-19

 

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