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Wedding attendee falls one level over handrail: Is hotel liable?

Wedding attendee falls one level over handrail: Is hotel liable?

In this week’s travel law article, we examine the case of Sussman v. MK LCP Rye LLC and Hilton Management, 2017 NY Slip Op 31557(U) (N.Y. Sup. 2017), rearg. gtd. 2018 NY Slip Op 30241(U) (N.Y. Sup. 2018) the Court noted that “on May 5. 2012 Plaintiff and his now wife, Christina Schmiedel (Schmiedel) attended a wedding at the Hotel. Plaintiff alleges that Plaintiff and Schmiedel were descending a stairway from the third-floor landing to the second-floor landing, when Plaintiff tripped and fell over the subject stairway’s handrail, falling to the first-floor landing. Plaintiff (alleges) that the subject stairway was improperly and negligently constructed and maintained and was not in compliance with the applicable laws, codes, rules, regulations and industry standards…Defendants argue that summary dismissal of the Complaint is warranted, as Plaintiff speculates as to the cause of his accident. Specifically, Plaintiff and Schmiedel’s testimony demonstrated that Plaintiff cannot identify the cause of his fall or the exact location where his fall began. Additionally, the police investigation… established that Plaintiff was found lying on the first-floor landing, consistent with him having fallen over the railing and that ‘no violations were found’ upon investigating Plaintiff’s accident… Additionally, Plaintiff was intoxicated and ‘well medicated’ at the time of the accident”. Defendant’s motion to dismiss denied. On reargument the Court adhered to its original decision.

Terror Targets Update

San Bruno, California

In Wakabayashi, Astor, Salam & Stevens, Police Identify Woman Who Wounded 3 at YouTube and Killed Herself; Motive Is Unclear, nytimes (4/3/2018) it was noted that “A woman opened fire with a handgun at YouTube’s headquarters in California on Tuesday afternoon, shooting three people-one of whom was critically injured-before killing herself…The San Bruno Police Department identified the attacker late Tuesday as Nasim Najafi Aghdam, who was in her late 30s. The motivation for the shootings was under investigation, the police said, although her social media postings included criticisms of YouTube”.

Ontario, California

In Man arrested for detonating 2 ‘explosive devices’ inside California store, travelwirenews (4/6/2018) it was noted that “California police have detained a man they believe detonated two small explosive devices inside a store in Ontario. No one was injured in the incident, but authorities had found ‘additional materials’ inside his car”.

Munster, Germany

In Car crashes into crowd in Munster: How safe is it to travel to Germany after vehicle “hits pedestrians”?, travelwirenews (4/7/2018) it was noted that “Several people have been killed after a vehicle crashed into a crowd in the German city of Munster. German police confirmed at least three people are dead and dozens injured following the incident around the Kiepenkerl statue in Munster’s old town…police say the driver has killed himself”.

Kunduz, Afghanistan

In Nordland, Afghan Military Strike Kills at Least 70 at Mosque, nytimes (4/2/2018) it was noted that “Afghan military helicopters bombed a religious gathering in the northern province of Kunduz on Monday, killing at least 70 people and wounding thirty others…the helicopters attacked a religious ceremony for which about 1,000 people had assembled in a mosque and surrounding fields around noon…Brig. Gen. Mohammad Radmanish…denied the gathering had been for religious purposes. ‘The Taliban and other insurgent groups were planning to attack Afghan forces, but their plan was discovered by our forces’”.

Murders Up In London

In Yeginsu, London Confronts a Spate of Murders With Most Victims Killed by Knives, nytimes (4/7/2018) it was noted that “One teenager was caught in the crossfire of a drive-by-attack. Another shot in the face. They died within 24 hours of each other. Two days later, another teenager and a burglary suspect were fatally stabbed and a man beaten to death on what appeared to have been a late-night brawl outside a betting shop. On Thursday, five teenagers were stabbed in an hour and a half before sunset, including a boy of 13. All these attacks took place in London over the past week…After a long period of steady declines in violent crimes, the city has averaged in excess of three killings a week so far this year”.

Naloxone, Anyone?

In Dias & Correal, Naloxone Stops Opioid Overdoes. How Do You Use It?, nytimes (4/6/2018) it was noted that “The United States surgeon general issued a rare national advisory on Thursday urging more Americans to carry naloxone, a drug used to revive people overdosing on opioids (and) designed to immediately reverse an opioid overdose. It blocks the brain’s opioid receptors and restores normal breathing in people who have overdosed on fentanyl, heroin or prescription painkillers. Its effects last for 30 to 90 minutes, which ideally buys enough time to get medical attention”.

Helicopter Crash Revisited

In Vogel & McGheehan, Months Before Deadly Crash, Helicopter Pilots Warned of Safety Issues, nytimes (4/7/2018) it was noted that “For months before an open-sided helicopter capsized in the East River drowning five passengers who had been strapped inside, pilots of the company that operated the flight warned their bosses about dangerous conditions, including equipment that could make escape difficult. The plots repeatedly requested more suitable safety gear, with one pilot writing an email to company management that ‘we are setting ourselves up for failure’ by using sometimes poorly fitting harnesses. The pilot made a series of recommendations-including one four days before the fatal accident-for new tools that would allow passengers to more easily free themselves in case of an emergency, according to company emails, other internal documents and interviews”.

Beatles Tour, Anyone?

In Robbins, A Beatles Tour in England? You Know That Can’t be Bad, nytimes (4/6/2018) it was noted that “When I suggested to my Beatles-obsessed husband that we should go to Liverpool, I won points for the rest of our marriage. What I didn’t realize until later, when I was standing on a certain lane behind the shelter in the middle of the roundabout, was that I would actually enjoy myself. Vert strange. I had wondered if, in making such a pilgrimage, there would be a place for the nonreligious. But when slanted sunbeams fell of Eleanor Rigby’s headstone as if on cue, I shivered a little and smiled”.

Wild Heart Of Tanzania

In Gettleman, A Family Adventure in the Wild Heart of Tanzania, nytimes (4/2/2018) it was noted that “Few wildlife parks in Africa allow you to drift lazily along a calm stretch of water like something out of the ‘The African Queen’ and take in an incredible amount of wildlife from a boat. The Selous Game Reserve, a remote and spectacular wildlife refuge in central Tanzania, is one of them”.

Yoga Mats & Loaner Bikes

In O’Shea-Evens, At a Denver Hotel, Art, Yoga Mats and Loaner Bikes, nytimes (4/7/2018) it was noted that “Hotels that pretend to be dog friendly yet charge extortionate fees are my literal pet peeve. Not so Kimpton, which is perhaps the paw-friendliest chain. Downtown Denver’s 200-room Kimpton Hotel Born opened in August 2017, with a Wild-West-goes-modern-aesthetic and when we checked in with our papillon, Huckleberry, we were greeted with peanut butter and molasses treats”.

Casual Dining Loyalty List

In Kline, Which Casual Dining Chain Has the Most Loyal Customers?, fool (3/27/2018) it was noted that “Many casual dining brands have suffered in recent years largely because the market has gotten crowded. Consumers have to choose between the low prices offered at fast food establishments, the higher-end food at many fast-casual chains and getting table service at a casual chain…Foursquare’s first-ever Casual Dining Loyalty Index…Buffalo Wild Wings…took the top spot lead by strong scores in Share of Wallet and its Market Penetration. The chicken wing chain also scored well in Fanaticism ‘due in part to a contingent of super fans most likely going wild for the chain’s Blazin Rewards loyalty program, which expanded in 2017 to serve all 1200+ locations’ according to a blog post by Foursquare Senior Vice President Michael Rosen”.

Delta Air Lines Data Breach

In Reuters, Sears Holding, Delta Air hit by customer data breach at tech firm, msn (4/5/2018) it was noted that “Department store chain Sears Holding Corp…and Delta Air Lines Inc….said on Wednesday some of their customer payment information may have been exposed in a cyber security breach at software service provider…The incident happened on or after Sept. 26, 2017 last year and was found and resolved on Oct. 12, the company said. Personal details related to passport, government identification, security and SkyMiles information were not impacted, Delta said”.

Cheerleaders Behave, Please

In Belson, No Sweatpants in Public: Inside the Rule Books for N.F.L. Cheerleaders, nytimes (4/2/2018) it was noted that “Baltimore Ravens cheerleaders were subject to regular weigh-ins and are expected to ‘maintain ideal body weight’, according to a handbook from 2009. The Cincinnati Ben-Gals were even more precise in recent years: Cheerleaders had to be within three pounds of their ‘ideal weight’…Cheerleader handbooks, seven of which have been reviewed by The New York times, include personal hygiene tips, like shaving techniques and the proper use of tampons. In some cases, wearing sweatpants in public is forbidden…Across the N.F.L. teams even try to place extensive controls on how cheerleaders conduct themselves outside work. This includes limiting their social media activity as well as the people they choose to date and socialize with. Restrictions are placed on their nail polish and jewelry”.

Plunge Off Cliff Intentional?

In Chokshi, Family’s Fatal Plunge Off Cliff May Have Been Intentional, Authorities Say, nytimes (4/2/2018) it was noted that “A crash in which a sport utility vehicle carrying a family plunged off a California cliff overlooking the Pacific Ocean last week may have been intentional…The vehicle, carrying Jennifer and Sarah Hart and at least three of their six adopted children, had stopped on a dirt pullout off Highway 1 on March 26 before accelerating about 70 feet to the edge of the cliff, the California Highway Patrol said, citing an analysis of the vehicle’s onboard computer. Investigators also did not find skid marks at the scene that might have indicated a collision”.

National Park Fee Increase

In Victor, National Park Service Reconsiders Steep Fee Increase After Backlash, nytimes (4/5/2018) it was noted that “A Trump administration proposal to steeply increase entrance fees to the most popular national parks landed with a thud when it was presented in November, and park officials say they are now reconsidering it. The proposal, which would apply during the peak visitor season in 17 parks included the Grand Canyon, Yellowstone and Yosemite, called for a $70 fee for noncommercial vehicles, up from $30. The fee for motorcycles would rise to $50 from $25, while pedestrians and cyclists would be charged $30, up from $15″.

Snow Monkeys Take A Bath, Please

In Gorman, Hot Springs Lower Stress In Japan’s Popular Bathing Monkeys, nytimes (4/3/2018) it was noted that “The snow monkeys of Japan are famous, as monkeys go. This troop of Japanese macaques lives in the north, near Nagano, the mountainous snowy site of the 1998 Winter Olympics…But the source of this troop’s fame is an adaptation that only they exhibit: soaking in hot spring bathing pools. Their habitat is full of natural hot springs that tend to be over 140 degrees Fahrenheit…when the monkeys were bathing, stress levels were down. Another indication of the value of bathing to the macaques was that the higher-ranking females spent more time in the pools”.

Fake News? Go To Jail, Please

In Beech, As Malaysia Moves to Ban ‘Fake News’, Worries About Who Decides the Truth, nytimes (4/2/2018) it was noted that “In highway billboards and radio announcements, the government of Malaysia is warning of a new enemy: ‘fake news’. On Monday, the lower house of parliament passed a bill outlawing fake news, the first measure of its kind in the world. The proposal, which allows for up to six years in prison for publishing or circulating misleading information, is expected to pass the Senate this week…The legislation would punish not only those who are behind fake news but also anyone who maliciously spreads such material. Online service providers would be responsible for third-party content and anyone could lodge a complaint”.

What’s That Awful Smell In Alabama?

In ‘David and Goliath situation’: How New York City poop became a rural Alabama town’s problem, travelwirenews (4/6/2018) it was noted that “The unbearable stench of some 150 rail cars filled with human waste has pushed a small town in rural Alabama into the international spotlight. It turns out the toxic sludge came from New York City, 1,000 miles away. Since January, freight cars filled with human waste and other ‘sludge’ from New York City and nearby New Jersey have been piling up at the rail yard in Parrish, Alabama, about half an hour’s drive northwest of Birmingham. The town of less than 1,000 residents has been overwhelmed by the stench”.

Bus Crash In Tisdale, Saskatchewan

In 14 reported dead after junior hockey team bus crashes in southern Canada, travelwirenews (4/7/2018) it was noted that “Fourteen people were killed after a bus carrying players of the Humboldt Broncos, a Canadian junior hockey team, was hit on Friday night by a semi-trailer near Tisdale, Saskatchewan, the Globe and Mail reported, citing authorities …Fourteen others who survived the crash were airlifted to nearby hospitals with a range of injuries”.

Women Barred From Sumo Ring

In Rich, Women Barred From Sumo Ring, Even to Save a Man’s Life, nytimes (4/5/2018) it was noted that “Sumo wrestling, one of Japan’s oldest and most hallowed sports, has all kinds of inviolable rituals. The wrestlers must wear their hair in carefully coifed topknots. Before every match, they scatter grains of purifying salt. And women are never, ever, allowed in the ring. Even when a man’s life is at stake. Sumo’s discriminatory practices came under new scrutiny after a referee shooed women out of the ring at an exhibition match in Kyoto on Wednesday when they rushed to offer lifesaving measures to a politician who had collapsed while delivering a speech”.

No More Tourists in Boracay, Please

In Tourism has turned island into a “cesspool”, travelwirenews (4/5/2018) it was noted that “The closure, which will begin April 26, was announced following a cabinet meeting Wednesday and would be a ‘total closure’ to tourists…CNN Philippines reported. The decision ends weeks of speculation on the fate of the popular tourist destination, after Philippines President Rodrigo Duerte complained about the state of the island in February. Boracay, which is around 170 miles south of the capital Manila is home to as many as 17,000 people, many of whom are directly engaged in the tourist industry…Last year almost 1.7 million tourists, including a significant number of cruise line passengers visited the island during a 10 month period…Among the problems caused by the island’s long-running tourism boom is unregulated development and pipes carrying raw effluence directly into the sea”. travelwirenews

The Traveling Sweater Guy

In Holson, It’s Sweater Weather Forever, nytimes (4/3/2018) it was noted that “Samuel Barsky has gained a measure of fame online for posting photographs of himself in front of famous landmarks with handmade sweaters…Oh look! There he is standing in front of the skating rink at Rockefeller Center wearing a sweater adorned with ice skaters. That’s him too at the Luxor hotel in Las Vegas with a pyramid on his chest. And last summer he posted a photograph on Instagram in front of Niagara Falls with a sweater depicting (what else?) the famous waterfalls”. Bravo

Train Museum: All Aboard, Please

In Rail museum to promote night tourism, travelwirenews (4/6/2018) it was noted that “The tourists could enjoy simulators, toy trains and 3D virtual coach rides with discounts, ranging from 30-40 per cent on offer…New Delhi: The National Rail Museum has decided to keep its doors open till 9 pm from next month in a bid to increase footfalls at the country’s premier custodian of railway heritage”.

Travel Law Case Of The Week

In the Sussman case the Court noted that “In order for a plaintiff to establish a prima facie case of negligence, he must prove that (1) the defendants owed him a duty of care; (2) the defendants breached that duty of care; and (3) the breach was the proximate cause of his injuries.”

Landowner’s Duties

“It is well established principal that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, including the likelihood of injury to third parties, the potential that any such injury would be of a serious nature and the burden of avoiding the risk…In order to recover damages for a breach of this duty, a party must establish that the landowner created, or had actual r constructive notice of the hazardous condition which precipitated the injury…Thus, a defendant…in a slip and fall case has the initial burden of making a prima facie showing that it did not cause the condition and that it did not have actual or constructive notice of the condition…’


“It is well settled that a defendant is entitled to summary judgment…when a plaintiff provides testimony that he or she is unable to identify the defect that caused his or her injury’. However, a plaintiff’s failure to identify the cause of his fall is not necessarily fatal to his claim. (It has been held) that identification of the location where plaintiff’s accident took place together with expert testimony identifying the defective conditions at that site, is sufficient to raise an issue of fact as to whether the accident was caused by the allegedly defective condition”.

Defendant’s Expert

“Derector, a Professional Engineer licensed in New York State, with twenty-one years of field experience in the areas of construction engineering, building code implementation, construction safety and environmental hazard, affirmed that the measured the subject handrail to be 32 inches above the nosing of the first and second treads of the subject stairway and maintains that the subject handrail was ‘properly constructed, maintained safe for is intended use and violated no known applicable code, standard or ordinance. Derector further affirmed that the subject stairway was in compliance with the following relevant building codes…”.

Plaintiff’s Opposition

“In opposition, Plaintiff demonstrates a triable issue of fact through his and Schmiedel’s testimony and the affidavits of experts. First, Plaintiff, Plaintiff submits testimony from himself and Schmiedel identifying the site where Plaintiff’s accident occurred. Plaintiff testified that as he stepped onto the first or second step of the subject stairway, he slipped and lost his balance…Plaintiff instantaneously reached out to grab the handrail located on the left side of the subject stairway, but he was unable to grasp it. After Plaintiff’s failed attempt to grab the handrail, his side hit the inner railing and he fell through the opening in the stairway. Further, Schmiedel testified…she witnessed Plaintiff’s thing ‘kind of touching’ the handrail and his legs were the last to go over the handrail”.

Plaintiff’s Experts

“Arvit, a licensed Civil Engineer with over twenty-five years of experience in conducting investigations and analysis relating to premises safety issues affirmed that the lack of adequate guardrail posed a falling hazard on the subject stairway (and) establishes that the subject stairway violated standards calling for the implementation of guardrails not less than 42 inches high”.

Generally Accepted Standards

“Arvit affirmed that the ‘Generally Accepted Standards Applicable to the State Building Construction Code’ issued in 1968 and 1971 (Generally Accepted Standards) identifies the then-current National Fire Protection Association No. 101 (NFPA) as a generally accepted standard. Section 5-3161 of the NFPA indicates that ‘[e]ach new stair…and stairs leading from mezzanines which form part of a path of travel to such exits, shall be guarded against falls over the open edge and shall have handrails on both sides except that handrails shall not be required on level landings or balconies’, Further, ‘[g]uards shall not be less than 42 inches high’…”.

Inspection Of Stairway

“Arvit indicates that he personally inspected the Hotel… including the subject stairway (which was) constructed in 1971. According to his measurements, the ‘handrails adjacent to this unprotected opening ranges from 30-3/8 inches to 30-1/2 inches and not 32 inches as stated in Derector’s affidavit. Further no guardrail or other protection was installed on the subject stairway to protect against falling off the stairs and through the stairway opening…Arvit also affirmed that the subject handrail was not intended to also function as a guardrail, since it was below the average human’s center of gravity…Arvit also note that subject stairway is in violation of several codes…that require a guardrail not less than 42 inches in height…Arvit opined that Defendants’ failure to install an adequate guardrail on the subject stairway was a proximate cause of Plaintiff’s fall…Accordingly, the branch of Defendant’s motion for summary judgment on the basis that Plaintiff failed to establish the cause of his accident is denied.

Constructive Notice

“To constitute constructive notice, a dangerous condition must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy the condition…A defendant property owner may also have constructive notice of a dangerous condition if the plaintiff presents evidence that the condition was ongoing and recurring in the area of the accident, and aa such condition was left unaddressed…the evidence submitted by Defendant is insufficient (to) demonstrate that it did not have constructive notice of the alleged defect…whether the subject stairway complies with building code is not dispositive of Plaintiff’s claim, which is premised, among other things, on common-law negligence principals. Moreover, the fact that the ‘stairway structure remained as constructed in 1971′ does not, without more, establish prima facie showing of lack of constructive notice”.


“There is a question of fact as to whether the height of the handrail constitutes a dangerous condition…It is a question of fact for the jury not only whether that configuration was a dangerous condition, but also whether those years were enough time for defendants to discover that the handrail was insufficient and remedy the condition…the part of Defendant’s motion for summary judgment on the basis that Plaintiff fails to establish Defendant’s notice of the allegedly defective condition, is denied”.

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 42 years including his annually updated law books, Travel Law, Law Journal Press (2018), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2018), Class Actions: The Law of 50 States, Law Journal Press (2018) and over 500 legal articles. For additional travel law news and developments, especially, in the member states of the EU see

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