April 3, 2019

DSB was successful in having a wrongful death/survivor claim dismissed in the Supreme Court, Westchester County on a motion for summary judgment.  Plaintiff’s decedent, an elderly man, was found injured in the driveway after allegedly falling from a 5-foot high retaining wall above.   Plaintiff died shortly after the fall.   Plaintiff alleged that the walkway above, located alongside the top of a retaining wall, was defective due to a lack of safety railing and a lack of lighting.  DSB argued that plaintiff’s theory of negligence was speculative in that the accident was unwitnessed.  Plaintiff offered no evidence as to how the accident occurred and had not established the existence of a defect.  The defense expert was able to demonstrate that the retaining wall was not defective.  Plaintiff was not able to prove the decedent actually fell from the wall.