Theory of Law Raised Too Late

            In Hubbard v. City of New York, 924 N.Y.S.2d 533 (2d Dept. 2011), the plaintiff commenced a lawsuit against the City of New York as a result of an alleged trip and fall accident over a downed lamppost that was lying in the gutter of a street and which was not visible to her due to significant snowfall on the ground.  In her pleadings, she alleged negligence on the part of the City in permitting the site where the accident occurred to remain in a dangerous condition.  Particularly, she alleged that the City knew or should have known of such dangerous condition, and therefore is responsible for her injuries.  The case went to trial, where a jury awarded her a favorable verdict.  However, the City appealed, and the Appellate Division reversed the jury award.

            At trial, the plaintiff argued that the City was liable under a theory of an affirmative act of negligence (also known as a theory of “creation”).  Specifically, she argued that a City plow truck knocked over the subject lamppost, and afterward City workers moved the lamppost into the gutter of the street, where the plaintiff ultimately tripped over it.  The Court, on appeal, held that the trial court erred in allowing the plaintiff to proceed under this theory because it was never raised at any pre-trial stage.  According to the Court: “the theory was not contained in either the plaintiff’s pleadings or her bill of particulars.  In fact, in its demand for a bill of particulars, the City explicitly asked the plaintiff to state if actual or constructive notice were claimed, and additionally, whether she alleged that the City created the condition.  In her bill of particulars in response, she only stated that actual and constructive notice were claimed.  She did not claim that the City created the condition.  As this was a new theory not previously disclosed [before trial], the City had no opportunity to prepare for rebuttal.”

Salvatore R. Marino, Esq.