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Maier v. Tri-Kelly’s, Inc.
Supreme Court, Westchester County
Index No. 19758/08
February 7, 2011

HRRV Obtains Defense Verdict for White Plains Bar

Plaintiff Kelly Maier,  a patron of the Thirsty Turtle, alleged that while exiting the White Plains bar in the early morning hours of January 1, 2008, she slipped and fell due to a wet condition on the floor, approximately three to five feet from the entrance.  As a result of her fall, the plaintiff sustained a bi-malleolar fracture requiring surgery.  The plaintiff alleged that when she entered the Thirsty Turtle, approximately an hour before her accident, she observed the wet condition and complained to a female bartender.  The plaintiff further alleged that in that hour before her accident, no one at the Thirsty Turtle cleaned the condition.  Thirsty Turtle had no record of this incident.

At trial, plaintiff and her friend testified inconsistently as to the events preceding the plaintiff’s accident.  Specifically, the plaintiff alleged that she was sitting at the bar the entire time she was at Thirsty Turtle and was looking in the area of where she had observed the wet condition and no one from the Thirsty Turtle remedied it.  Her friend, however, testified that she and the plaintiff, along with two other female friends, were dancing for a period of time, left the dance floor to use the bathroom located on the lower level, and returned to dancing before the group started making their way out.  The plaintiff’s friend also admitted that she had no way of knowing as to whether the condition the plaintiff slipped on was the same condition that they had observed when they walked in. 

In addition the defense was able to locate and subpoena the EMT and the triage nurse who treated the plaintiff shortly after the accident.  The EMT testified that the plaintiff had told him that she “stumbled” causing her to injure her ankle.  The triage nurse testified that the plaintiff told her she “missed a step and landed on her right ankle” causing her to be injured.

The Thirsty Turtle’s assistant manager and bartender on the night of the accident testified that there were approximately 26 employees working at the Thirsty Turtle that evening and that it would have been virtually impossible for a condition, such as the one alleged, to have existed for any extended period of time.  He also testified that, based on the location of the alleged condition, approximately five to seven employees were stationed within one to two feet of the condition.  In addition, the location was in a high traffic area where bus boys and wait staff regularly transgressed.  Finally, the assistant testified that had the accident occurred within the Thirsty Turtle, an incident report would have been generated.  The fact that one does not exist can would only show that either Thirsty Turtle was not aware of it or that the accident occurred outside the Thirsty Turtle.

At the close of trial, on February 7, 2011 the Westchester County jury rendered a verdict in favor of the defendant.

Carmen A. Nicolaou represented Tri-Kelly’s, Inc.

Prior results do not guarantee a similar outcome

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