Dismissal reversed by consideration of the plaintiff’s affidavit, which was signed after her deposition, regarding identification of the cause of her fall from a bike on a sidewalk.

The dismissal of the plaintiff’s negligence action was reversed when the court found that the plaintiff created a triable issue of fact in signing an affidavit. The defendant argued that the affidavit contradicted her testimony about hitting a hard object on the sidewalk with her bike and falling between “two things.” Later in her testimony, the plaintiff admitted she did not know precisely what caused her bike to lose control. She noted that she “fell in between two things” and that the accident occurred “[v]ery, very quickly.” In a subsequent affidavit, the plaintiff clarified her deposition testimony, stating, “[w]hat [she] meant [was] that [she] did not know the mechanics of what caused her to fall.” She further claimed that “she was injured as a result of the front tire coming in contact with [a] metal cover.” The plaintiff’s expert had later observed a sewer and water box in the middle of a sidewalk. The trial court found that the plaintiff’s affidavit was consistent with her testimony and created a question of fact.

_{Case Law Alerts, 1st Quarter, January 2016}

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