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AN EYEWITNESS TO PLAINTIFF’S SLIP AND FALL TESTIFIED PLAINTIFF TOLD HER SHE TRIPPED OVER A MUDSILL BECAUSE OF DIM LIGHTING; PLAINTIFF’S STATEMENT WAS ADMISSIBLE AS AN EXCITED UTTERANCE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Although plaintiff IHayward) testified she did not know why she tripped on a mudsill, an eyewitness (Espy) testified plaintiff told her she tripped because of dim lighting. Plaintiff’s statement was deemed admissible as an excited utterance. The court noted that defendants had demonstrated the mudsill was open and obvious and therefore did not need to demonstrate a lack of notice:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the wooden mudsill that caused Hayward to fall was open and obvious and not inherently dangerous … . Contrary to the plaintiff’s contention on appeal, having made that showing, the defendants were not required to make a prima facie showing that they lacked notice of the alleged defect. In opposition, however, the plaintiff raised triable issues of fact, relying on, inter alia, Hayward’s testimony at a hearing held pursuant to General Municipal Law § 50-h and the affidavit of an alleged eyewitness, Janice Espy. During the 50-h hearing, Hayward testified that the area underneath the sidewalk shed was dim and that some of the lighting fixtures were missing light bulbs. However, Hayward testified that she was able to see where she was going. When she was asked why she tripped on the mudsill, Hayward stated that she did not understand the question and that she did not know why she tripped on the wooden mudsill. Espy averred that when she saw Hayward fall, she went to assist her. Hayward told Espy that she tripped on the mudsill and that she did not see it before she fell because the lighting conditions under the sidewalk shed were poor. Hayward’s statement to Espy was admissible as an excited utterance because it was made under the stress of excitement caused by her fall … . Under the circumstances, triable issues of fact exist as to whether the accident site was adequately illuminated and whether the mudsill was open and obvious and not inherently dangerous … . Hayward v Zoria Hous., LLC, 2020 NY Slip Op 05892, Second Dept 10-21-20

 

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