FOR BREAKING NEWS VISIT WWW.QNS.COM JANUARY 4, 2018 • THE QUEENS COURIER 21
ICE CREAM Q: On a hot summer day, we were visiting a store with an outdoor
promenade. My ten year old son was running toward an ice cream truck. On
loose and broken pieces of asphalt, he slipped and fell. The hospital records
indicate that he said something to the personnel there about his shoelaces.
A: Regardless of what the records say, it is not at all clear that your
son’s shoelaces were the ‘sole proximate cause’ of this accident. True, a
hearsay entry in a hospital record can be admissible evidence, even if not
germane to diagnosis or treatment. However, that is not always the case, and
indeed you may already have witnesses who observed this slip and fall, and
believe that the shoelaces had nothing to do with it. In addition, there can
always be more than one cause of an accident.
In cases like this, the store is generally required to offer some
evidence as to when the accident site was last cleaned or inspected prior to
your son’s fall. Mere reference to general cleaning practices, with no evidence
regarding any specific cleaning or inspection of the area, can permit the jury
to decide that the store impermissibly kept itself in the dark.
If the pieces of asphalt were very small, then the store may contend
that the condition was too ‘trivial’ to support a lawsuit. If they were very big,
then the store may assert that the danger was too ‘open and obvious’ to permit
the suit. Your attorney should be used to fending off such arguments. It
sounds like you have an excellent chance of establishing that the store should
have known of this hazardous condition, and that the condition caused the
mishap.
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