The death of an injured party can be devastating to a case — especially where the decedent dies before being deposed. In Thompson-Shepard v. Lido Hall Condominiums, the trial court granted defendant’s motion for summary judgment because there was no way for the cause of the decedent’s unwitnessed accident to be established.

There, the decedent was allegedly injured when he fell on the stairs at the defendant’s premises. The decedent’s pre-deposition death, unrelated to the unwitnessed fall, precluded his estate from asserting a conclusive cause of the accident.

The estate attempted to remedy the lack of testimony about the cause of the accident by submitting an expert affidavit claiming that the irregular and excessive riser heights, coupled with plaintiff’s testimony that she saw decedent’s leg lodged in a riser, caused the decedent’s accident. The court found that the expert failed to raise an issue of fact, as there were no witnesses to link the claimed defect to the decedent’s accident. Indeed, there was no sworn statement or testimony by the decedent claiming he fell due to the alleged defect in the riser height.

In personal injury lawsuits, a plaintiff’s cause of action hinges upon the cause of the accident. When a plaintiff is unable to conclusively determine what caused the fall, there is no way for defendants to be on notice. When possible, it is important for defense counsel to lock in inconclusive testimony as to the proximate cause of an accident, as such testimony is fatal to a plaintiff’s negligence action.