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Trivial Defects in New York

Determining if the Defect was Actionable

In cases that involve a defective sidewalk or stairway two issues must be addressed.  The first is whether the defect is so trivial as to be non-actionable.  The second is whether the defendant had notice of the condition.

Traditionally, the New York State Court of Appeals, while holding that there is no minimal dimension test or rule that a defect must be of a certain height or depth in order to be actionable, recognized that certain defects are sufficiently trivial as to be non-actionable.  Under that level of scrutiny the courts would look to the width, depth, elevation, irregularity and appearance of the defect as well as the time, place and circumstances of the accident to determine whether the defect was actionable.

Do Surrounding Circumstances Magnify the Danger?

It has traditionally been held that a small height differential or a physically insignificant defect may be actionable if its intrinsic characteristics or the surrounding circumstances magnify the danger that it poses so as to unreasonably endanger one’s safety.  Trincere v. County of Suffolk, 90 NY2d 976 (1997). 

For example, if the characteristics of the defect are difficult for a pedestrian to see or identify, or if the defect makes it difficult to traverse safely on foot, the defect could be actionable.  See Cupa v. City of Oswego, 117 AD 1418 (4th Dept. 2014), in which an elevated jagged edge of pavement in the parking lot was deemed to be actionable.  Conversely, in Squires v. County of Orleans, 284 AD2d 990 (4th Dept. 2001), a small area of a curb was found to have a reasonable depth, rendering it non-actionable.

Is Poor Lighting or Heavy Traffic a Distraction?

Poor lighting conditions or heavy traffic which can distract a pedestrian from looking down may render a defect actionable.  Glickman v. City of New York, 297 Ad2d 220 (1st Dept. 2001).  So, too, the location of the defect in the area that “would render the defect less observable” can also result in an action at law.  Brenner v. Herricks Union Free School District, 106 AD3d 266 (2nd Dept. 2013).

In a recent decision, the New York Court of Appeals revisited the test to be applied by the courts to determine whether a defect is trivial and therefore non-actionable as a matter of law.  In Hutchinson v. Sheridan Hill House Corp, 2015 WC 612 8664 (2015), the Court of Appeals stated that the test in New York is not whether a defect is capable of capturing a pedestrian’s shoe, but rather, whether it was difficult for a pedestrian to see or identify a hazard or if it was difficult to pass over it safely on foot in light of the surrounding circumstances.

Important Trivial Defect Cases

The Hutchinson decision by the Court of Appeals involved three consolidated lawsuits.  In the Hutchinson case, the plaintiff tripped over a metal object that protruded from the sidewalk.  The defendant established that the metal object was only about one quarter of an inch in height and five eights of an inch in diameter.  The Court noted that the metal object was located in a well-illuminated location in the middle of the sidewalk and in a place where pedestrians would not obliged to look only ahead.  The Court of Appeals specifically held that the object stood alone, was not hidden or covered in any way so as to be difficult to see, and therefore held that the metal object was trivial.

In the second case considered by the Court of Appeals, Zelicherko v. 301 Oriental Boulevard, LLC, the plaintiff’s right leg got caught on part of the nosing that protruded over the riser of the staircase that had a chip in it.  In applying the test above, the Court of Appeals noted that the plaintiff’s expert had provided sufficient evidence that the chip was located on that part of the stairs that would involve the walking surface of a step where a foot would have come into contact in the normal course of events and thereby placing the person’s body, resting on the foot, on the walking surface.  The Court noted other irregularities with regard to the step treads and nosing and determined that questions of fact existed so as to deny defendant’s motion for summary judgment.

In the third case before the court, Adler v. Qpi – Vill, LLC,  the plaintiff  allegedly tripped when her foot got caught on a “big clump” in the middle of a step.  As no requirements were provided to the Court of Appeals in the record, the Court held that it was impossible to determine whether the “clump” was a physically small defect to which the trivial defect doctrine would apply, thus warranting denial of the summary judgment motion.

Tactics for Defending Trivial Defect Cases

The practical effect of Hutchinson requires that the defendant, and whenever possible, the insurance company and/or investigator, proceed to the scene of the incident as soon as reasonably possible to photograph the defect with appropriate measurements.  Those photographs should, whenever possible, be taken under optimal lighting and traffic conditions, bearing in mind that the photos will be discoverable in a lawsuit.  The claims evaluation and defensive strategy should thereafter be based upon not only the dimensions of the purported defect but the circumstances surrounding the defect as early preparation may lead to a dismissal of the claim. 

Furthermore, the purported minute nature of the defect should not be treated so lightly as to be presumed non-actionable only to find out later that the trial court – or even the appellate court – did not agree.  Further, in cases where injuries are or could be significant, a liability expert should be brought on board to assist in the defensive strategy since the plaintiff’s counsel will have likely retained an expert for the very same reason.  As always, the rule that preparation is the key to success is especially applicable in trivial defect cases.


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