Trip/Fall Case Dismissed; Half-Inch Deep Depression Was “Trivial” as a Matter of Law

In Palladino v. City of New York (App. Div. 2nd Dept. April 1, 2015), the court affirmed the dismissal of plaintiff’s trip-and-fall case.

Plaintiff alleged that she was injured when she “tripped on a depression in the asphalt surface abutting a metal plate which covered a valve box that served a nearby fire hydrant.” The Supreme Court granted the motions for summary judgment filed by the City and private property owners and lessee.

Here’s the law:

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case, and is a question of fact for the jury. However, property owners 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 as a matter of law, 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.

Applying the law to the facts, the court held:

Here, the City, the property owners, and Top Tomato [the lessee] made a prima facie showing of their entitlement to judgment as a matter of law by submitting, inter alia, the transcripts of the plaintiff’s testimony at her deposition and the hearing pursuant to General Municipal Law § 50-h. The evidence submitted by the moving parties—including the plaintiff’s testimony describing the depression in the asphalt abutting the metal plate as being one-half inch deep—established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and therefore, was not actionable. (Emphasis added)

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