Among the many different ways to get injured (particularly in a place like New York City) is to be hit by a falling object. Such objects can include, for example:
- construction site equipment,
- a tree or tree branch,
- a giant restaurant mirror,
- an air conditioner,
- rocks, or
- a piece of decorative terra-cotta windowsill (as in the recent tragic case of 2-year old Greta Greene)
[Note: this article will focus on injuries sustained outside the construction context; such claims are generally statutory in nature and arise under, e.g., Labor Law 240(1) and 241(6).]
Injuries sustained in this way fall under the general category of personal injury cases referred to as “premises liability“, which concern injuries arising from a dangerous or defective condition of someone else’s property.
Generally, a plaintiff in a personal injury case must show that the defendant
- Created the alleged hazardous condition,
- Had actual notice of the defective condition, or
- Had constructive notice of the defective condition and failed to correct it (i.e., the defect was visible and apparent and existed for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it). See Mitchell v. City of NY, 29 AD3d 372 (App. Div. 1st Dept. 2006).
For example, in Saunders v. 551 Galaxy Realty Corp., 64 AD3d 564 (App. Div. 2nd Dept. July 7, 2009), the plaintiff was injured when an air conditioner fell from the window of a building owned by defendants. Defendants moved for summary judgment, arguing that “the tenant who rented the apartment caused the air conditioner to fall when he was removing it from the window, and that they had no notice of any hazardous conditions that would cause the air conditioner to fall.” The court denied the motion, reasoning:
The defendants failed to submit sufficient evidence in admissible form to make a prima facie showing of entitlement to judgment as a matter of law. The defendants offered no evidence, other than inadmissible hearsay, as to why the air conditioner fell from the window. The defendants failed to show that they were not negligent in their initial inspection of the air conditioner’s installation. No evidence was provided as to the defendants’ general policy on inspecting and maintaining air conditioning units installed on the premises, and the defendants failed to show that, as the owners of the property, they relinquished exclusive control of the apartment and the window from which the air conditioner fell, to a tenant who had no lease, thus absolving them of liability.
The First Department reached the opposite conclusion in Delosangeles v. Asian Ams. for Equality, Inc., 40 AD3d 550 (App Div. 1st Dept. May 31, 2007) (also involving injuries sustained from a falling air conditioner), where the defendant met its initial burden and plaintiff, in response, “did not provide a shred of evidence on the issue of constructive notice”
Res Ipsa Loquitur
Falling-object injury cases may be (but are not necessarily) suitable for application of the legal doctrine known as “res ipsa loquitur”, which is Latin for “the thing speaks for itself.”
In Mejia v. New York City Transit Authority, 291 A.D.2d 225 (App. Div. 1st Dept. Feb. 7, 2002), the court explained:
[R]es ipsa loquitur is a … doctrine that enables a jury presented only with circumstantial evidence to infer negligence simply from the fact that an event happened[.] … [S]ince the time it was crafted by Baron Pollock in Byrne v. Boadle, 2 H. & C. 722 * * * (1863), in which a now-legendary barrel of flour rolled out of a window, its use has expanded to cover a myriad of accidents and incidents. Res ipsa loquitur does not create a presumption in favor of plaintiff, but instead permits the inference of negligence to be drawn from the circumstances of the occurrence. The doctrine creates a prima facie case of negligence sufficient for submission to a jury, and the jury may, but is not required to, draw the permissible inference.
The submission of a case to a jury on the theory of res ipsa loquitur is warranted when the plaintiff can establish the following elements: (1) the accident is of a type that does not occur in the absence of negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.
As the Court of Appeals has observed, res ipsa loquitur is merely a “brand of circumstantial evidence.” Morejon v. Rais Constr. Co., 7 NY3d 203 (2006).
The Mejia case is instructive as to how the doctrine of res ipsa loquitur might be applied in the “falling object” scenario. There, the plaintiff “was standing on a subway platform at the Times Square station awaiting the shuttle train when he was struck on the head by a falling object which allegedly caused him to fall to the platform and sustain injury.” Although the court dismissed plaintiff’s first cause of action for negligence (due to a failure of proof on, among other things, the issue of notice), it permitted plaintiff to continue to assert his second cause of action on a theory of res ipsa loquitur, finding that “defendant has failed to refute plaintiffs’ contention that it had exclusive control of the area where the accident occurred.”
These cases illustrate that not every falling-object injury case will succeed. If you have been injured by a falling object, contact us today for a free consultation.