In Mazza v. Our Lady of Perpetual Help Roman Catholic Church, 134 A.D.3d 1073 (N.Y. App. Div. 2nd Dept. 2015), the court affirmed the lower court’s denial of defendant’s motion for summary judgment on liability, and declined to find that the alleged defect upon which plaintiff tripped was “trivial” as a matter of law.
In this personal injury/premises liability case, plaintiff allegedly tripped and fell on a “cementitious deposit,” or cement patch, on a sidewalk abutting the defendants’ premises.
The court, citing the New York Court of Appeals cases of Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997) and Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66 (2015), summarized the law:
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 that fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable. (Emphasis added.)
Applying these principles, it held that defendants were not entitled to summary judgment: “No evidence was elicited as to the dimensions of the defect at the time of the accident. In light of the photographs, which depict the irregular nature of the sidewalk, as well as the time, place, and circumstance of the plaintiff’s fall, it cannot be said as a matter of law that the condition at issue was trivial as a matter of law and therefore not actionable.”