Down the Chute
Q: Through the opening at the top of our coal chute, I tumbled down. Two weeks earlier, my parents had called a plumber to do some work in the basement. He had removed the cover of our coal chute to go down there.
For the next two weeks, we each walked over the coal-chute cover about twice a day, without incident, until I fell. I have a hunch that the plumber must have failed to replace the cover the right way. For some time, that cover had been deteriorating. Afterwards, we threw it out.
A: If an attorney takes your case, she will want to argue that the plumber, in failing to exercise reasonable care in the performance of his duties, launched a ‘force or instrument of harm’. One way to launch a ‘force or instrument of harm’ is to exacerbate an existing condition. You will need to offer evidence that the plumber left the house in a more dangerous condition than he found it. A mere theory that the plumber ‘must have failed’ does not amount to evidence.
An attorney may also want to argue that, under the contract, the plumber was obliged to warn your parents about the supposed deteriorating condition of the cover – to become an ‘instrument for good’. However, even if there is such an obligation (which is by no means clear) it may well run only in favor of the parties to the contract (your parents) and not to third parties, even you as a child.
As yet another challenge, you may well be precluded from offering evidence at trial regarding the condition of the cover, which you threw out, on the ground of what lawyers call spoliation (spoiling) of evidence.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2016-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878