Was Homeowner Liable for the Injury?
A postal worker making a delivery to a house is startled when she hears a dog bark. She turns to avoid the canine and is injured falling off the stop. She sues the homeowner and the Court must decide if she makes a case.
Jean-Charles sued Jeniann Carey to recover damages allegedly sustained as a result of an accident on February 3, 2017. Jean-Charles alleged that, on the date of the accident, she was delivering mail at Carey’s residence during her course of employment as a postal worker when she fell off the front exterior steps to the ground. Carey moved for summary judgment dismissing the complaint, arguing that Jean-Charles could not make a prima facie case of negligence because she could not establish what caused her to fall.
At her deposition, Jean-Charles testified that she was employed as a postal worker on the date of the accident; was delivering mail at Carey’s premises; the premises was on her regular route; and she had that same route for about eight years. Although regular mail was delivered to a mailbox at the street, on the date of the accident Jean-Charles had a request for re-delivery of a certified letter, which she was delivering to the front door of the premises. She had made deliveries to the front door in the past. There was a walkway to the stoop at the front of the house, with two or three steps to the front door.
On previous occasions when she approached the front door, Jean-Charles had encountered a dog, who would begin barking a few feet before she got to the steps. Jean-Charles never had any encounters with the dog where it was aggressive with her, and she was not aware of any complaints about the dog. The post office procedure for a home with a dangerous dog was for the postal worker to fill out a warning card to alert other postal workers to the dog’s presence. Jean-Charles described a dangerous dog as one that attacked, however, she never filled out a warning card for the dog at the Carey house.
Jean-Charles testified that, in general, when she approached the premises, she would hear a dog barking. She first heard the dog on the date of her fall when she was approximately ten feet from the house. The dog’s bark became more aggressive as she got closer, and she could hear him banging against the window and barking. After she arrived at the top step, Jean-Charles knocked on the door or pressed the doorbell, at which time the dog sounded like it was outside of the house, so she prepared for the impact of the dog. It sounded like the dog was coming from the left side of the house, so Jean-Charles turned her body to the left to see what direction the dog was coming from, and that is when she fell backward.
But, she never actually saw the dog outside of the house. She did not recall whether she slipped on anything, as she was attempting to get through what she believed to be an impending dog attack. Jean-Charles remained on the ground for a couple of seconds after she fell, got up, and returned to her truck to call her office. The accident occurred on a clear day and there was no snow or ice on the steps or on the ground.
Carey testified that she had owned the premises since 1995. She owned a male dog named Cody, who is part boxer and part shepherd. She adopted Cody in 2015. Cody was affectionate and he would go to the windows in the front of the house and bark if he heard someone coming towards the house. Cody never bit anyone and Carey never received any complaints about the dog prior to the date of the accident.
The house was renovated in 2004, which included installing new front steps. The renovation was inspected and the steps passed inspection. According to Carey, prior to the date of the accident, no one ever complained to her about the steps, no one ever fell on the steps, and she never received a summons or ticket for any type of dangerous condition concerning the steps. Carey was working at the time of the accident, which she did not learn of until 2018 when she received notice in the mail regarding this lawsuit.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. The movant has the initial burden of proving entitlement to summary judgment. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form, and must show facts sufficient to require a trial of any issue of fact.
The Court’s function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility. The facts alleged by the opposing party and all inferences that may be drawn from those facts are to be accepted as true.
Where a plaintiff is unable to give a specific reason for the cause of an alleged accident, he or she may not recover based on pure speculation. Moreover, the mere happening of accident does not establish liability of a defendant for negligence. The inability to identify the cause of an injured party’s fall is fatal to a cause of action because a finding that a defendant’s negligence, if any, proximately caused the injuries would be based on speculation. Where it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation.
Here, the Court found that Jean-Charles was unable to identify the condition which caused her to fail without resorting to speculation, thereby establishing Carey’s prima facie entitlement to summary judgment. Jean-Charles’ testimony established that, although she believed that Carey’s dog was about to attack her, she did not actually see Cody at the time of the accident. The weather was clear on the day of the accident and there was no snow or ice on the steps which could have caused Jean-Charles to slip and fall. As for the steps, Carey’s testimony established that she had no actual or constructive notice of the allegedly dangerous condition. The steps were constructed in 2004, had passed inspection, and she received no complaints or summonses regarding them.
Carey met her burden on the motion. The burden then shifted to Jean-Charles, who, in order to defeat the motion for summary judgment, was required to proffer evidence in admissible form that showed facts sufficient to require a trial of any issue of fact. However, Jean-Charles failed to raise a triable issue of fact. Although she alleged that she fell because there was no railing on the steps, that allegation was belied by her deposition testimony in which she stated that she did not look for something to grab onto until she had already begun to fall.
Although her expert, Harold Krongelb, opined that the lack of a handrail was a substantial cause of her fall, Jean-Charles did not testify that her fall was caused by lack of a handrail—and did not present any other evidence to connect that alleged building code violation to the accident. What’s more, Krongelb never inspected the accident location so his opinion regarding causation was impermissibly speculative and lacked probative value.
Carey’s motion was granted. Jean-Charles’ complaint was dismissed.