Thomas M. Bona, P.C.

Attorneys At Law

Court Rejects Attempt To Blame Defective Stairs for Accident

As a Result of Hurricane Irene

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent decision granting summary judgment.

Three years after Hurricane Irene, cases that arose from the storm are still being decided. As with most cases, plaintiffs attempt to find reasons to blame their accident on something other than their own negligence and inattention. A recent case in which we represented the defendant and won summary judgment demonstrates this.

In Konviser v. Davos Pointe Condominium Associations, the plaintiff, a 79 year-old woman, slipped and fell as she went up an exterior stairway to her neighbor's apartment to retrieve a newspaper in front of the door. Although she has done this in the past without incident, on this day as she was descending the wet steps wearing slippers and holding the rail, her feet "floated" out from under her and she fell down. Plaintiff claimed that the steps were slippery because of water from Hurricane Irene. Plaintiff sued, claiming that the stairs were dangerous and defective, and that the defendants had actual or constructive notice of the dangerous condition. Defendants moved for summary judgment.

The treasurer of the condominium who supervised maintenance, testified that there had been no complaints about the stair treads and there had been no changes to the staircase in question. The maintenance director of the condominium testified that he had not seen any warped stairs treads nor replaced any stairs treads in the 25 years that he had been employed there, and had received no complaints about the warped stairs. In opposition, the plaintiff submitted an affidavit from an engineer who examined the steps and stated that the stairs were defective with building code violations which caused the plaintiff to slip and fall. The engineer concluded that the defendants had notice of the defective condition by noting that the stairs were painted after warping. Defendants' expert, a professional engineer, testified that the stairs were appropriate, were not warped and did not violate any building code. The defendants' engineer noted that a wet step would be slippery.


The Court granted the defendants= motion for summary judgment. The Court found that the stairs which plaintiff slipped and fell were structurally appropriate. The Court further found that the defendants had established that the prevailing storm had made the stairs wet, and that there were no prior complaints about the stairs in question.

The Court rejected plaintiff's contention that the "storm in progress" doctrine does not apply to rain, but only to snow and ice. The Court found that "while plaintiff may be correct that snow and ice are different from rain, that is a distinction without a difference because plaintiff does not show that defendant could have done anything to abate the wet condition when it was raining during a hurricane". The Court also found that the plaintiff had not established that the defendant had notice of a defect, if one existed, and noted that the plaintiff had safely negotiated those steps in both directions and that the only difference here was that the stairs were wet from the storm.

The Court's decision is a common sense rejection of a plaintiff's attempt to blame her accident on a set of stairs her expert found "defective". The Court rather noted that plaintiff had gone up and down these steps before, with no problem. Of course, wearing slippers on wet stairs was the real negligence here. When claims adjusters allow their defense attorneys to make summary judgment motions, judges will dismiss cases. This teaches plaintiff's attorneys not to bring questionable cases which reduces claims and indemnity payments.

Should you have any questions, please call.

Thomas M. Bona