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Premises Liability – Fall down – Defendant commercial property owner allegedly negligently maintains loading dock – Lumbar herniations – Three surgeries.

Rensselaer County, NY

The plaintiff worker, in 40s, contended that the defendant property owner out of which his moving and storage company employer operated, negligently failed to properly inspect and maintain the loading dock, resulting in his tripping and falling over a dangerous lip that created an approximate one inch height differential at the point of the incident. The plaintiff contended that he suffered several lumbar herniations that required three surgeries, and which will permanently prevent him from returning to work.

The defendant denied that the plaintiff’s claims should be accepted. The defendant established that the plaintiff was aware of the lip and had, in fact, painted it yellow on a prior occasion.

The defendant maintained that the plaintiff had "staged" the incident that occurred in the morning, and that he acted in response to just learning of a lay off that would be effective at the close of business that day.

The fall was captured on the facility’s video system. The defendant also presented a biomechanical engineer who contended that the fall was not consistent with body mechanics. The expert discussed the video, in which the plaintiff appeared to trip and go down onto his knee before becoming prone on the ground. Additionally, the video showed that arms did not instinctively shoot out to protect the head as would be anticipated in an unexpected fall.

The defendant further pointed out that there were no prior falls reported on the loading dock, and despite frequent inspections, the defendant was never cited by OSHA or any other agency for a code violation at the dock, which the defendant contended would be expected if an unsafe condition existed.

The plaintiff’s orthopedist contended that although the plaintiff made lumbar complaints some years earlier, he had been asymptomatic for a significant period before the incident. The physician maintained that the plaintiff sustained several lumbar herniations, and will suffer permanent symptoms, despite some three surgical interventions.

The defendant contended that any lower back conditions were pre-existing and not aggravated by the incident.

The defendant further introduced evidence on the issue of credibility, as well as the plaintiff’s employment application, which showed that he failed to list numerous criminal convictions, including schemes to defraud.The jury found for the defendant.

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