Sidewalk Defect Was Not “Trivial” as a Matter of Law; Trip-and-Fall Case Continues

In Slattery v. Sachem N. High Sch., the Appellate Division, Second Department recently affirmed the lower court’s denial of defendants’ motion for summary judgment.

Plaintiff claimed she “tripped and fell due to a difference in height between two concrete slabs of a sidewalk abutting the defendants’ premises.”

The court explained the legal standard for determining when a defect is “trivial” so as to preclude liability:

A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. In determining whether a defect is trivial, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury. [T]here is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable.

The court held that while defendants met their initial burden, the plaintiff raised an issue of fact, precluding dismissal:

[U]pon reviewing the photographs acknowledged by the plaintiff as accurately reflecting the condition of the alleged defect as it existed at the time of the accident, and considering all other relevant factors, we conclude that the defendants established, prima facie, that the alleged defect was trivial as a matter of law and, therefore, not actionable.

In opposition, the plaintiff raised a triable issue of fact sufficient to defeat the defendants’ prima facie showing. Specifically, the plaintiff’s expert, whose affidavit was properly considered by the Supreme Court, raised a triable issue of fact as to the height of the alleged sidewalk defect, whether the alleged defect was nontrivial, and whether it existed long enough to provide constructive notice of the alleged condition.

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