Nicoletti, Gonson, Spinner, LLP

Josephine Vittorio v. U-Haul, Supreme Court, Dutchess County, Index No. 1404/04

In October 2008, in the New York State Supreme Court, County of Dutchess, Partner Kevin Pinter engaged in a five day jury trial defending U-Haul in an action stemming from a trip and fall incident at the local U-Haul facility located in Poughkeepsie, New York.

Plaintiff, a forty-six year old homecare attendant, alleged that she tripped and fell upon leaving the U-Haul facility when her shoe became caught in a “hole” created by a missing piece of floor tile located adjacent to the raised door saddle, directly in front of the door providing ingress and egress to the facility. As a result, plaintiff claimed that she was propelled out of the facility and landed on the pavement outside, sustaining severe injuries to her left foot, legs, hips, shoulders and face. Ultimately, part of plaintiff’s left foot, including her entire left small toe, was amputated at Vassar Brothers Hospital. Plaintiff alleged that her left foot was, consequently, left discolored and misshapen, her gait was unnatural and she had poor balance with accompanying severe pain and suffering. Plaintiff claimed to have lost substantial periods of time from her usual vocation as a result of the accident.

Plaintiff passed away approximately five (5) years after the incident due to, we contended, unrelated complications arising from her untreated diabetes. Within the applicable two year statute of limitations, Plaintiff’s counsel attempted to amend the complaint to include a cause of action for wrongful death, a motion which we successfully opposed, resulting in the court’s decision (issued two days prior to the commencement of trial) disallowing the amendment.

At trial, we presented a certified safety expert who had personally examined, measured and photographed the subject flooring (which still contained the missing piece of floor tile at the time of trial), and who testified that the missing piece of tile created no more than a trivial defect, which did not constitute a dangerous condition to members of the general public. The jury returned a unanimous verdict in U-Haul’s favor on October 24, 2008.