Up Chuck Causes Slip Up (Twice)


Aquino v. Kuczinski (New York)
(Casino Patron Slips and Falls in Vomit Twice; Retained Attorneys Blow Statute of Limitations; Legal Malpractice Claim Fails Due to Lack of Constructive Notice and Evidence in Underlying Claim)

The plaintiff was walking through the lobby of the Trump Taj Mahal Casino Resort in Atlantic City when she slipped on a substance that she identified as vomit. Plaintiff did not see any substance on the floor prior to her fall. She further alleged that after she fell, a woman dressed in a blazer and holding a walkie-talkie, whom she believed to be a security guard, came over and told her to get up. When she tried to get up unassisted, she allegedly fell again in the vomit. Plaintiff and other family members left the casino, and plaintiff later received treatment at an emergency room facility.

Plaintiff subsequently retained the defendant law firm to represent her in an action against the casino. The law firm wrote a few letters demanding a settlement and requesting insurance information. No offer of settlement was made, and the statute of limitations expired before a lawsuit was filed. The plaintiff then commenced an action against the defendant law firm for legal malpractice for failing to file her lawsuit and failing to investigate the claim and protect her interests.

Plaintiff had admitted that she had no information regarding how long the vomit existed prior to her accident or whether the casino had any prior notice of such condition. As such the defendant law firm argued that because she could not show actual or constructive notice of the dangerous condition, she therefore could meet her burden in the legal malpractice action of demonstrating that “but for” the defendant’s negligence, she would have prevailed in the underlying action. Plaintiff offered testimony that a security guard instructed plaintiff to “get up,” and after plaintiff responded she was unable to do so, the guard’s additional statement that “you have to try to get up or else I can’t help you.” The trial court denied the defendant’s motion for summary judgment, finding that the security guard’s alleged statement raised a triable issue “as to whether the casino had actual notice with regard to her second, subsequent fall in the same location.” The defendant appealed.

On appeal, the court ruled as follows:

(1) Plaintiff did not show that the casino had constructive knowledge of dangerous condition;

(2) The casino did not have duty to remove vomit from floor before patron of casino, who already had slipped and fell to floor due to vomit, attempted to stand after her fall;

(3) The security guard’s observation that a patron was laying on floor of casino did not prove that the guard had actual notice of dangerous condition of vomit on floor with regard to the patron’s attempt to arise from floor and her subsequent fall;

(4) Plaintiff had to show that the security guard had been authorized to speak on behalf of the casino before the guard’s statement could have been admissible under the speaking-agent exception to hearsay rule;

(5) The plaintiff’s recitation of the security guard’s statements, telling plaintiff that she had to try to get up before she would receive assistance, were inadmissible hearsay; and

(6) The casino did not breach a duty to the plaintiff by not having its agent assist the plaintiff in climbing to her feet in non-negligent manner after the patron slipped and fell on vomit on the floor of the casino.

The lower court’s ruling was reversed and judgment was entered in favor of the defendant.

NOTE: The standard required to prove legal malptractice is high. There were clearly evidentiary problems with the plaintiff’s underlying claim. It was a difficult situation for the plaintiff in that her claim was essentially that the defendant law firm failed to adequately investigate the claim. As a result of that failure, she was unable to procure information essential to her case, such as the identities of potential witnesses, including the casino’s security guard. Ironically, it was the lack of this information the precluded he from pursuing her action against the law firm for its failures.

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