A slip and fall turns into $150,000
By Frances McInnis
November 15, 2009
Whoever coined the phrase “fashion victim” probably didn’t have this in mind.
Roberto Cavalli, the Italian fashion house known for its sumptuous evening gowns, is facing a potentially costly personal injury lawsuit from a man who fell and fractured his ankle in front of its Madison Avenue store in December 2003. Papa Diop, 43, is also suing Madison Immobilier, LLC, which owns the building at the corner of East 63rd Street and Madison Avenue.
There was nary an evening dress to be found at the State Supreme Court on Wednesday. The plaintiff, a former handyman from Senegal, wore a simple black suit as he took to the stand in an almost comically confusing morning of testimony.
Photo Credit: Frances McInnis
Andrew Bernstein, the attorney for Roberto Cavalli, had a cold; his voice was hoarse and cracked unpredictably. Diop, who speaks only French, was using an interpreter who struggled to fluidly translate some of the lengthy questions and answers. During several particularly cryptic exchanges, Judge Carol Robinson Edmead had to ask the court stenographer to read back parts of the transcript.
The confusion culminated in a heated debate about the semantics of the French term “neige.” Bernstein asked Diop several times to clarify whether he had slipped on ice, as he claimed Wednesday morning, or slipped on snow, as he had alleged in a 2008 deposition. Diop, flustered, ran his hand over his shaved head as he attempted to explain. “In French, when you say ‘la neige,’ it means ice and snow all together,” he testified, throwing his hands wide. “Everything.”
Bernstein continued: “Yes or no, did you intentionally use the word snow?” After a few abortive attempts to elaborate, which Edmead cut short, Diop eventually answered. “Oui.”
The issue of whether Diop slipped on snow or ice at the heart of the suit. The well-established “storm in progress” defense is based on the principle that at property owners may wait until precipitation stops before they begin clearing it away. However, Ronald Katter, the lawyer for Diop, explained during a break in proceedings, “if you do start to shovel, you must do it in a safe manner, not make it more hazardous than it would otherwise have been.” Katter claims that Roberto Cavalli’s manager and security guards salted the sidewalk, creating a puddle of water, which then froze into ice when the temperature dropped from 31 to 26 degrees on the afternoon of the accident. He said he will call a meteorologist and an engineer as expert witnesses.
The jury watched the morning’s testimony with little emotion, often shifting in their seats and gazing around the courtroom. Conversely, Diop’s wife Amy, a young woman in a navy dress pants and a crisp blue shirt was visibly nervous. She works as a French-English interpreter, and closely followed her husband’s struggle to understand and make himself understood. She inhaled sharply when he misunderstood questions, and, from her seat in the benches at the back of the courtroom, whispered encouragingly towards the witness stand when he seemed at a loss.
The Diops were married in Senegal, and moved to New York eight years ago. They live on the Upper West Side, and have an 8-year-old daughter, and a 4-year-old son. Papa Diop works as an assistant Maitre d at Nello’s Restaurant, an eatery frequented by the New York elite. The restaurant is less than a block from the Roberto Cavalli store; in 2003, Diop had recently been hired and was on his way to training at the time of the accident.
Slip and fall lawsuits are among the most common personal injury cases according to Margot Ludlum, the attorney for Madison Immobilier. “Next to auto cases, slip and fall and trip and fall cases are probably the most popular,” she said. However, New York judges routinely dismiss such claims unless the plaintiff can show that the defendant created the dangerous condition, was aware of the danger and had sufficient notice to fix the problem.
The jury will decide if the Roberto Cavalli store, which boasts crystal doorknobs and gold ceiling fixtures, did enough to keep its sidewalks clear. The Madison Avenue store had its 10th anniversary in September, marked with a lavish party attended by celebrities like tenor Andrea Bocelli and supermodel Cindy Crawford. But few in the courtroom were impressed, least of all Ludlum.
“Before this case, I had never heard of Roberto Cavalli,” Ludlum said. “The Gap was about it for me.”
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(On November 9, the two sides in the case came to a settlement. Diop received $150,000.)
