Trip/Fall Case Survives Summary Judgment; Raised Brick Was Not a “Trivial Defect” as a Matter of Law

In Chojnacki v. Old Westbury Gardens, Inc., 2017 NY Slip Op 05706, 2017 WL 3045841 (App. Div. 2d Dept. July 19, 2017), the court reversed a lower court’s finding that the alleged defect that caused plaintiff to fall – a raised brick – was “trivial” as a matter of law.

From the decision::

The Supreme Court erred in determining that the defendant demonstrated its prima facie entitlement to judgment as a matter of law. The defendant failed to establish, prima facie, that the alleged defect was trivial as a matter of law. A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie 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 risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact[.] … In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of the plaintiff and the Director of Horticulture of the defendant, the affidavit of an expert witness, and two photographs that the plaintiff claimed showed her lying on the walkway shortly after her accident but did not portray the raised brick on which she allegedly fell. Viewed in the light most favorable to the plaintiff as the nonmovant …, the evidence submitted by the defendant failed to eliminate all triable issues of fact as to the dimensions of the alleged defect, and failed to establish that the condition was trivial and, therefore, not actionable[.] … The defendant also failed to make a prima facie showing that the alleged raised brick was an open and obvious condition that is inherent to the nature of the property and could be reasonably anticipated by those using it[.] … Furthermore, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the allegedly raised brick.

As the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law, the court did not consider the sufficiency of plaintiff’s opposition papers.

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