Dangerous Premises Accidents in New York

Recent Premises Liability Cases in New York’s 9th Judicial District

March 1, 2019 | Mark Siesel

Owners of real property owe a duty of care to people invited onto their property under the legal theory of “premises liability,” a common-law doctrine derived from the theory of negligence (i.e., the absence of ordinary care). Premises liability generally holds that a property owner has a duty to maintain their property in a reasonably safe condition, and may be liable for injuries caused by a hazardous condition. The “trivial defects” doctrine is an important exception to New York premises liability. It holds that a property owner is not liable if the defect, when examined in light of the unique circumstances of the site, is not objectively dangerous. The New York Court of Appeals has held on several occasions that this is a question of fact best left to a jury. Courts in New York’s 9th Judicial District, whose jurisdiction consists of Westchester, Dutchess, Orange, Putnam, and Rockland Counties, have considered several claims recently involving the trivial defect doctrine, and have often sided with plaintiffs.

In a negligence claim, a plaintiff has the burden of proving four elements. First, the plaintiff must establish that the defendant owed a duty of care, either to the plaintiff or the general public. Second, they must demonstrate that the defendant breached this duty of care. Third, they must show that this breach was the cause-in-fact of the plaintiff’s injuries. Finally, the plaintiff must substantiate measurable damages resulting from their injuries.

Premises liability involves a particular duty of care, from a property owner to individuals who have been invited onto the property. In some situations, such as the “attractive nuisance” doctrine, this duty of care also extends to trespassers. A plaintiff must show that the property owner knew or should have known about a defect or hazard on the property, and that they breached their duty of care by failing to repair the defect, insufficiently repairing it, or failing to warn visitors about it.
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New York Slip And Fall-Preserving Evidence Key To Successful Outcome

February 1, 2010 | Mark Siesel

If you are injured in a New York slip and fall accident or accident involving dangerous premises, it is vital that you get as much evidence as possible while in the store to win in Court or obtain a good settlement. Some examples:

1. Insist on providing a written report to the manager or supervisor of the store or establishment, which you review before signing, and get a copy of that report;

2. When reporting an accident, do not allow the store representative to put words in your mouth (which they love to do) such as that you were looking at the shelves, not the floor, or you were distracted by a child or a cellphone;
3. If you slipped on a substance and there is an open bottle, write down the name of the product. If you slipped or tripped on an item sold in the store, secure this item as it will be of critical importance if your case reaches trial;
4. Take photographs of the accident scene on a cellphone or better yet, a digital camera if you are fortunate enough to have one with you;
5. Obtain the names, addresses, phone numbers and e-mail addresses of any witnesses to the accident;
6. Don’t refuse medical attention if you are injured–take them up on their offer to call an ambulance for you. We have many cases in our office in which the client refused medical attention initially, which is a frequent defense of the insurance carriers for these owners of dangerous premises;
7. Take photographs of any visible injuries such as bruising, swelling, and bleeding;
8. Preserve intact any clothing which has been damaged, torn or has blood stains or stains from a spilled substance;

9. Maintain a diary of how the accident has affected your life, documenting pain, loss of range of motion, inability to perform activities of daily living, doctor’s appointments, and the loss of enjoyment of hobbies and sports that you would normally engage in.

$1.25 Million Settlement In Playland Death

March 26, 2009 | Mark Siesel

The family of the late Jon-Kely Cassara, a seven year old boy who died on the Ye Old Mill ride at Playland Park on August 3, 2005, settled this New York dangerous premises case for $1.25 million on March 23, 2009. The Westchester fatal accident occurred when Jon-Kely got out of his boat and fell in a dark tunnel, apparently getting stuck under the ride apparatus and drowning. The settlement offer was made by Westchester County after the devastating testimony of former Playland director Joseph Montalto, the first and only witness to testify. Montalto testified that he would not have allowed Jon-Kely on the ride if he had known that there were insufficiently trained workers on the ride that day.

The settlement must be approved by the Westchester County Board of Legislators, which was scheduled to vote on the settlement this week. It is expected that the Board will vote to approve the settlement; if not, the case would have to be retried, with the seven year old victim’s family and lawyer determined to obtain a verdict on the heels of that vital testimony by Mr. Montalto.

Jon-Kely’s death was the third at Rye Playland in the last five years. On May 22, 2004, 7 year old Stephanie Dieudonne, was thrown from the Mind Scrambler ride and killed. Three years later, 21 year old park employee Gabriela Garin was also killed on the Mind Scrambler, which has since been removed from the park.

New York Accidents At “Big Box” Stores

December 13, 2007 | Mark Siesel

Everyone in New York, and around the country, has shopped at the “big box stores”–Wal-Mart, Costco, Target, BJ’s, Lowe’s, and Home Depot, to name a few. Heavy merchandise is stacked high up on the shelves, as much as twenty to thirty feet in the air, and the question is: “Are these stores safe?” The answer for many of our personal injury clients in the Bronx, Brooklyn, Queens, Manhattan, White Plains, and the entire lower Hudson Valley is a resounding “No!” Every day around the country, customers at these establishments are being seriously injured by falling merchandise, which has been improperly stacked, carelessly arranged, or placed without the necessary safety cables or other devices to prevent accidents. The ABC News program “20-20” highlighted the dangers of falling merchandise accidents a few years ago.

Second Review of New York’s Playland Amusement Park Is Not As Favorable As Initial Report

November 2, 2007 | Mark Siesel

As an update to our October 19, 2007 report, a second review of Playland Amusement Park in Rye, New York is not nearly as favorable as the initial report. H. Harold Hudson, a consultant retained by Westchester County Executive Andrew Spano, has determined that although ride operators performed their duties in an “efficient and proficient manner”, there are noticeable improvements that are needed to improve safety at the New York landmark. Clearly, in the wake of the third fatal accident at Playland since 2004, there was a general concern that Playland had become dangerous premises in New York.

Mr. Hudson noted the following:

1. On many of the larger rides, there were too many ride operators, creating an atmosphere in which operators were socializing with their co-employees more than focusing on their ride responsibilities;
2. At shift time, confusion and uncertainty “crept in”, leaving “large gaps in ride operator’s attention to their ride duties”;
3. Security officers were observed spending large amounts of time socializing rather than paying attention to what was going on around them;

4. Operators were observed jumping on and off the carousel platform while the ride was operating at full speed.

This latter observation is of particular concern in light of the tragic death of park employee Gabriela Garin back in June of 2007, who was killed on the “Mind Scrambler” while allegedly not seat belted, and purportedly standing up while the ride was at full speed. In addition, as Ms. Garin was on duty at the time, park rules forbade Ms. Garin from being on the ride at the time of the fatal accident. There is also an open issue as to why the other ride operator started the ride knowing that Ms. Garin was not supposed to be on the ride and was not buckled into her seat.

Westchester County’s Playland Amusement Park Gets Positive Safety Report

October 19, 2007 | Mark Siesel

Despite a string of fatal accidents at Westchester County’s Playland Park, including two on the “Mind Scrambler” in the last three years, a safety consultant has found that conditions at the amusement park have actually improved dramatically in that time. Jerry Aldrich was hired by County Executive Andy Spano to conduct an audit of the park after the June 29, 2007 death of 21 year old park employee Gabriela Garin on the “Mind Scrambler.”

Westchester County officials have contended throughout the summer that the amusement park is safe. Although Aldrich’s report did not directly address Ms. Garin’s death or the other fatalities, he suggested that County officials were correct in their contention that the accidents were beyond park managers’ control. Previous reports by the New York State Labor Department and the Westchester County Police faulted the Mind Scrambler ride operator for starting the ride even through he knew Ms. Garin was not properly seated, and Ms. Garin herself for taking a ride while on duty and not properly seating herself.