Is a slip and fall at a supermarket worth pursuing

Law CPLR 4549 – The (New) New York Speaking Agents Rule. It’s About Time!

Picture yourself walking down the aisle of your local supermarket.  You’re pushing a full shopping cart, not noticing an open box of rice on the floor directly in front of you.  Your foot hits the rice, and you slip and fall.  You know immediately that your leg is broken because you felt it snap.  X-rays confirm the diagnosis, and you are told that you need surgery and will be in a cast for at least 6 weeks.  You begin to wonder – will all your medical bills be covered; what about lost wages; and will you have a viable claim against the store for pain and suffering?

You’re not feeling very happy, but you are relieved about one thing.  A maintenance employee from the store witnessed your fall and stated, “Oh, I was supposed to clean that up a half-hour ago, and I just didn’t get to it.  I’m so sorry!”

Common sense would tell you that that statement is an admission by a store employee that he was negligent – he knew about the dangerous condition which caused your accident; he was supposed to clean the condition, and he failed to do so.  You figure that since the store employs the maintenance guy, the store would be responsible for his actions.  So, while your leg may hurt, you find some comfort that at least you’ll be able to prove negligence against the store.

Until very recently, however, the law in New York would have excluded that statement at a trial against the store.  Prior to the addition of New York Civil Practice Law and Rules (CPLR) Section 4549, that statement was considered to be Hearsay, and therefore inadmissible in Court.  The reasoning was that the employee was not authorized to speak for the store; he was merely authorized to clean the floor.

Traditionally, out-of-court statements are not admissible in evidence under the Hearsay Rule; generally speaking, a witness is not permitted to testify as to what someone else said.  However, there are exceptions to that Rule.  One example is known as the “excited utterance”.  If someone blurts out a response to a startling event, the law considers that statement to be more reliable, and therefore admissible as an exception to the Hearsay Rule.  In your case, the maintenance employee was pretty startled; he just saw someone fall on a condition that he was supposed to clean up, and he’s pretty sure that he’s going to get blamed.  And yet, the statement was previously inadmissible.

What does CPLR 4549 actually change?

Happily, CPLR 4549 now permits the use of statements like the one above.  That means that you as the accident victim (or anyone else that heard the statement, such as your friend, sibling, spouse, or any other witness) can testify that the statement was made, and a jury can consider that statement as proof of the employee and store’s negligence.  As another example, say you are a pedestrian and are hit by a truck that was delivering furniture for a local store.  You were in the crosswalk, the light was in your favor, and for whatever reason, the driver just didn’t see you.  When he gets out of the vehicle, that’s the first thing that he says.  That statement is now admissible in Court pursuant to CPLR 4549.

CPLR 4549 is a game-changer.  Statements which would prove liability are now admissible to do just that.  Without that statement, your case against the store might not be provable.  Under New York law, the fact that you fell on that rice does not in itself prove liability against the store.  Obviously, the rice is not supposed to have been on the floor, but you also have to prove that the store had notice of that condition.  That means that you have to prove that the store knew about the condition; that the condition was on the floor for a long enough period of time that the store should have known about the condition; or that the store created the condition.  Without the above statement, it might be difficult to prove notice, and if you can’t prove notice, the case against the store will not be successful.

So hats off to the New York legislature.  CPLR 4549 – it’s about time!

Michael L. Taub, a Partner at The Platta Law Firm PLLC, has been a member of the New York State Bar for 38 years and is a graduate of the American University Washington College of Law.  He is also admitted to practice in the United States District Court, Eastern and Southern Districts of New York, and the District of Connecticut.  He has extensive experience in Plaintiff’s personal injury cases, particularly those concerning automobile accidents and premises accidents.  He has argued multiple cases before the First and Second Departments of the Supreme Court, Appellate Division.

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