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Plaintiff’s NJ Lawsuit Dismissed Due To Inability To Describe Cause Of Trip And Fall

By on May 7, 2021 in Negligence with 0 Comments

Plaintiff Evangelos Vassilakis sued defendants Thomas Kelly and Bonita Duffy, the owners of the property where plaintiff was a tenant, and also sued the owners of the property next to plaintiff’s apartment due to injuries suffered in a fall.  Plaintiff claimed that he was injured when he fell on the defendants’ property.  The issue in Vassilakis v. T.J. Kyle Construction, LLC, 2021 N.J. Super. Unpub. LEXIS 763 (App. Div. April 30, 2021) was whether the trial court judge should have accepted the plaintiff’s affidavit as to how the accident occurred, which he submitted for the first time in opposition to the defendants’ motions for summary judgment and provided information contrary to his deposition testimony.

In the plaintiff’s Answers to Interrogatories, he claimed that the accident occurred about 10:00 in the evening when he was walking back to his home.  He was walking in a grassy alleyway in between his house and the one next door.  He stated that he “slipped and fell in the area of a depression in the ground and an old tire, with wood beams around it” that resulted in him sustaining serious injuries to his knees, neck and back.

Plaintiff was thereafter deposed and he was asked whether he encountered anything on his walk prior to his fall that caused his trip, slip or fall.  His testimony was that he tripped on something because there was debris in front of him.  He did not know if he slipped on something or he tripped on something.  He admitted that it was probably the wet grass that made him slide or fall, as opposed to a ditch in the area.

Further, because the plaintiff did not have “rain protection equipment” at the time, he was walking fast with his head down.

The trial court judge found that as residential landlords, defendants Kelly and Duffy “only had a duty to protect against foreseeable dangers arising from the use of the premises or upon notice of such dangers.”  The trial court judge noted that the defendants received no notice of a dangerous condition on the property which would have imposed upon them a duty to act.  The only “dangerous” condition that the plaintiff pointed out was the “wet grass.”  The judge found that the plaintiff’s decision to walk on wet grass did not impose liability on defendants.

In response to the defendants’ motion for summary judgment, the plaintiff submitted a certification in which he now he remembered that he felt a piece of debris touch his foot.  He indicated that “my foot continued to slide on a tar like substance into the hole.”  Further, while he had discussed the possibility of wet grass contributing to his fall in his deposition, now in his certification he stated, “I am not certain that wet grass was present but if it was, I think that it was not the sole cause of my slip and fall.  The debris, tar like substance, and the hole itself located in the area where I fell all contributed to its sequence.”

The trial court judge considered this certification, which was first submitted in opposition to the defendants’ motion for summary judgment and contrary to the plaintiff’s deposition testimony, to be a “sham affidavit.”  Under the case law, the trial court may disregard an offsetting affidavit that is submitted in opposition to a motion for summary judgment when that affidavit contradicts the witness’s prior deposition testimony.  Based upon this standard, the motion judge rejected the plaintiff’s certification and found that the certification was an “attempt to minimize adverse testimony by submitting a sham certification which tries to change the facts.”

Thus, the trial court judge granted defendants’ motion for summary judgment and dismissed the lawsuit.  This appeal ensued. 

The Appellate Division noted that it uses the same standard to determine the viability of a motion for summary judgment as the trial court.  It cited to the well-known summary judgment standard that judgment must be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.”            

The Court further pointed out that to be cognizable for a negligence cause of action, the plaintiff must establish four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.  The Appellate Division discerned “no legal basis to disturb the motion judge’s well-reasoned opinion finding plaintiff failed to establish a cognizable negligence cause of action against defendants.” Hence, the Appellate Division affirmed the summary judgment dismissal in favor of all the defendants.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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