Appellate Division of the Supreme Court of the State of New York January 5, 2010 (Mitthauer v. T. Moriarty & Son, Inc.)

*589When asked at his deposition what caused his fall as he stepped from the portable toilet, Mitthauer testified: “I couldn’t honestly tell you. I was mystified myself.” Mitthauer also testified that, while the portable toilet was wobbly or “belter skelter” on some days, the toilet did not wobble when he exited it on the date of the accident.