United States: Lewis Brisbois Wins Reversal In Personal Injury Suit
Last Updated: May 18 2017

In Ziman-Scheuer v. Golden Touch, the Appellate Division, First Department recently reversed the lower court and granted our summary judgment motion dismissing the complaint in a suit brought by an elderly passenger of a charter bus who slipped and fell while descending the bus steps late at night.

As a result of the fall, the plaintiff sustained a right knee and tibia fracture followed by open reduction and internal fixation surgery, total right knee replacement, and left hip replacement.

In her suit, the plaintiff alleged that the bus step was "oily," that the handrails were not within reach, that the steps were uneven, and that the bus driver failed to assist her while disembarking even though she was elderly and plainly needed assistance. Her expert engineer cited a larger number of claimed statutory violations in connection with the bus steps and handrail, and her settlement demand totaled in the high five figures.

The trial court denied our motion for summary judgment, finding that the plaintiff had sufficiently alleged statutory violations that defeated the motion.

But the Appellate Division rejected each of the plaintiff's claims and found nothing statutorily wrong with the bus. The court agreed that the defendant's inspection of the bus before and after the accident established no notice of a slippery condition on the step, which was proven with an affidavit of the driver.

The Appellate Division also agreed that the defendants had no obligation to assist the elderly plaintiff as she disembarked from the bus. Although the bus driver testified that it was his employer's policy to assist passengers getting off, the court agreed that under the case law, such an internal standard cannot replace the common law standard of care.

The court further rejected the affidavit of the plaintiff's expert engineer, finding that the numerous claimed statutory violations were all inapplicable because they do not pertain to buses, noting that plaintiffs are not permitted to borrow statutory violations from other, unrelated contexts. The statutes and standards cited by the plaintiff's engineer only pertain to buildings, airports, and other unrelated facilities.

Accordingly, the court agreed with our expert's opinion that the bus was safe and the handrails were within reach. The court therefore dismissed the complaint.

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