In Petrilli v Federated Dept. Stores, Inc., 2007 NY Slip Op 04389, the plaintiff was seriously injured after slipping and falling on clean, dry tiles located at the entrance of a department store owned by the defendants.
Following a trial that resulted in a substantial verdict for the plaintiff, the defendant appealed and alleged, in part, that the trial court improperly allowed testimony regarding subsequent similar accidents. The defendant alleged that the proof of subsequent similar accidents is admissible only in design defect cases.
In this case, the plaintiff's theory of negligence was that he fell not because the tiles were wet or damaged, but rather because the tiles were inherently slippery.
The Third Department held that because the plaintiff was able to prove through his expert witness that the tile was negligently placed at the entrance of the store, the trial court's determination was correct:
Although design defect cases present a classic situation where both prior and subsequent accidents are potentially relevant to establish that a dangerous condition existed, it is possible, as here, for a plaintiff to allege that a defendant used a product in such a manner as to create a permanent, or inherent, dangerous condition, without alleging any defect in the product itself. Here, through the use of expert testimony, plaintiff established that the product the tile was not defective, but was being negligently misused because it was an inappropriate choice of tile for the entrance to a store... Under such circumstances, records of subsequent accidents are relevant to establish whether the condition created by defendants was unreasonably unsafe...
Sounds about right to me, since It seems to me that in a sense, the defendant's alleged negligence--improperly using a certain type of tile in an entranceway--is actually a type of a design defect, at least as that term is commonly understood. In other words, the entranceway was defectively designed because of the negligent decision to install those particular tiles. And, evidence of subsequent falls is therefore relevant since it constitutes additional evidence that the decision to install those particular tiles was negligent and likely caused others to slip as well.