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ALTHOUGH PLAINTIFF’S EXPERT IN THIS STAIRWAY SLIP AND FALL COULD NOT TESTIFY THE STAIRWAY VIOLATED ANY STATUTE OR REGULATION, THE EXPERT COULD HAVE TESTIFIED THE SLIPPERY CONDITION VIOLATED A CUSTOM IN THE INDUSTRY AS REPRESENTED BY THE AMERICAN SOCIETY FOR TESTING MATERIALS STANDARDS; THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert (Fein) in this stairway slip and fall case should not have been precluded from testifying. Although the expert could not testify the condition of the stairway violated a code or regulation, he could have testified the slippery condition violated a custom in the industry represented by the American Society for Testing Materials standards:

The absence of a violation of a specific code or ordinance is not dispositive of the plaintiff’s allegations based on common-law negligence principles … . Accordingly, a defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances … .

Had Fein been permitted to testify, he could have addressed whether the coefficient of friction of the subject staircase, as measured during his inspection, was a departure from generally accepted customs and practices, and whether the defendants were negligent in failing to correct it … . Fein could have testified as to the American Society for Testing Materials standards, even though the Supreme Court correctly stated that they were not law. Fein could have testified as to whether those standards represented the general custom or usage in the industry, and the jury could have considered any deviation from those standards as some evidence of negligence . Any purported shortcomings in Fein’s testing go to the weight to be given his testimony, not its admissibility … …. [T]he court improvidently exercised its discretion in granting the defendants’ motion in limine to preclude the plaintiff from presenting the proposed expert testimony relating to the American Society for Testing Materials standards regarding the coefficient of friction, and the preclusion of this testimony deprived the plaintiff of a fair trial … . Martell v Dorchester Apt. Corp., 2022 NY Slip Op 05164, Second Dept 9-14-22

Practice Point: Here in this stairway slip and fall, the expert could not testify the stairway violated any statute or code. However the expert was prepared to testify the slippery condition violated a custom in the industry as represented by the American Society for Testing Materials standards, which may be evidence of negligence. The experts should have been allowed to testify.

 

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