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Is what you just fell over trivial? Take a quiz.

You are walking along a sidewalk or on a set of stairs. Next thing you know you are lying on the ground looking around to find out what it was that caused you to fall. Surely there must have been something there! Upon careful inspection you find what it was that you are sure caused your nasty spill. And you wonder: can I sue someone for the injuries I have sustained as a result of that defect on the ground?

Some cases are easy: you step into an unprotected deep hole that has been there for a long time. But most cases are more complicated. What if the defect can be viewed as so small and insignificant that some would call it trivial? The highest court in New York State recently addressed three cases and decided whether they could move forward.

First, Mr. H was walking on a concrete sidewalk in the Bronx when his right foot “caught” on a metal object protruding from the sidewalk. The object was 1/8-1/4 of an inch above the sidewalk and about 5/8 inch in diameter. The party responsible for the property said that the defect was trivial and, further, that it didn’t create the condition and didn’t know it existed.

Second, Mr. Z fell while walking down a staircase of a building he was visiting in Brooklyn for the first time. On the second step tread from the bottom, his leg “got caught” when he stepped on a part of the nosing where there was a missing piece or chip. After discovery, a lower court ruled that the alleged defect consisted of a chip measuring about 3 inches wide and about an inch deep, located almost entirely on the edge of the second to last step from the bottom and not on the walking surface and that therefore the defect was trivial.

Third, Ms. A fell on an interior staircase of the apartment building where she lived. She testified that she was walking down the stairs when her right foot “got caught” on a “big clump in the middle of the stair” which had been painted over. She had seen this clump on previous occasions. The owner of the building argued that the defect, based upon the photographs, was trivial.

So, can any of these cases move forward? Should any be dismissed?

The law in New York regarding whether a defect is trivial, and therefore not actionable, is complicated. To be sure, there is no minimal dimension test that a defect must be of a certain minimum height or depth in order to be actionable. Even a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses so that it unreasonably imperils the safety of a pedestrian. A court must consider all the facts and circumstances presented. Whether a dangerous or defective condition exists on the property of another so as to create liability is generally a question for the jury. If the defendant seeks to dismiss the case claiming that the defect itself is trivial, it must make a showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.

So, how did our 3 injured parties do?

Mr. H tried to demonstrate that the features of the defect would magnify the hazard it presents. He also said that he was not required to look down at his feet while walking along the sidewalk. After examining all of the facts and circumstances presented, the highest court found the defect to be trivial and the case was over.

Mr. Z presented an expert to say that the step tread had a missing piece, of irregular shape, 3 inches deep and ½ inch wide, on the nosing of the step and the expert said that it was necessary for the step treads to be uniform. The defendant/property owner presented its own expert who opined that the chipped step did not present a tripping hazard for several reasons. The trivial defect doctrine is grounded on the fundamental principle that if a defect is so slight that no careful person would reasonably anticipate any danger from its existence, and yet an accident occurs that is traceable to the defect, there is no liability. The court ruled that there was a question of fact regarding whether the defect was trivial and the case continued.

In the case involving Ms. A, the parties presented “indistinct” photographs but no measurements of the alleged defect. Without competent evidence, a court cannot determine if the defect is trivial and the case was allowed to continue.

That what you fell over – – and have sued the property owner about – – might be classified as trivial is a defense which can be raised by counsel for the owner. As the injured party, photographs and an excellent, somewhat detailed description are essential to avoid having your case dismissed and at least getting to a jury.

Robert M Lefland, Jacobowitz and gubits, hudson valley attorneys, trial attorney, litigation, appeals,Robert M. Lefland is Senior Counsel with the firm and practices Personal Injury and Appellate Practice. He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.


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