The “Trivial Defect” Doctrine in Personal Injury Trip-and-Fall Premises Liability Cases

One common type of personal injury case involves someone being injured as a result of tripping and falling on someone’s property, resulting in injury. In these so-called “trip-and-fall” cases, courts have developed and applied the “trivial defect” doctrine.

The Law

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. See, e.g., Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 41 N.E.3d 766 (2015). In addition, there is no “minimal dimension test” or per se rule that a defect must be of a certain miniumum height or depth in order to be actionable. Id.

The application of this doctrine is heavily fact-dependent. It cannot be over-emphasized that changing only one fact in a case may result in a completely different outcome. Nevertheless, below are some examples of cases where courts have applied the “trivial defect” doctrine to particular facts.

Case Law Examples – Defects held “trivial” as a matter of law:

  • Fayolle v East W. Manhattan Portfolio L.P., 108 A.D.3d 476, 970 N.Y.S.2d 186 (App. Div. 1st Dept. July 23, 2017) (affirming dismissal of plaintiff’s case, holding that “the alleged defect—a three-quarter-inch expansion joint, which was not filled to grade level, coupled with a one-fourth-inch height differential between slabs—was ‘trivial’ and therefore nonactionable as a matter of law” and further noting that the alleged defect was “not alleged to have run along the full width of the sidewalk.”).
  • Kavanagh v. Archdiocese of City of New York, 2017 WL 3045803 (App. Div. 2d Dept. July 19, 2017): “Here, the evidence submitted by the defendants in support of their motion included photos of the alleged defective condition as identified by the plaintiff, a damaged piece of tile, as well as measurements placing the depression at the damaged tile to be, at most, one-eighth of an inch. These photographs, along with the plaintiff’s description of the time, place, and circumstance of the injury, established, prima facie, that the alleged defect was trivial as a matter of law, and therefore, not actionable.”

Case Law Examples – Defects held not “trivial” as a matter of law:

  • Kearney v. Capelli Enterprises, 151 A.D.3d 5212017 WL 2540489, 2017 N.Y. Slip Op. 04783 (App. Div. 1st Dept. June 13, 2017): “Here, the accident report indicated that the concrete mound on which plaintiff fell was four inches high, 30 inches long, and 18 inches wide, and the lighting in the area was dim. Clearly, a defect of this size in a darkened area was not trivial. Fuller failed to show that it had no control over the construction of the concrete floor in that the unsigned contract and memorandum of understanding with a concrete subcontractor were not probative.”
  • Clauss v. Bank of America, N.A., 2017 WL 2490962, at *2 (N.Y.A.D. 4 Dept. June 9, 2017): “We conclude that the Village failed to “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 risks it poses” (Hutchinson, 26 N.Y.3d at 79, 19 N.Y.S.3d 802, 41 N.E.3d 766). In support of its motion, the Village submitted the affidavit of an employee who averred that he took photographs depicting the defect in the sidewalk, and that the photographs “most clearly show that the height of the alleged defect is one-half inch or less.” The Village, however, did not offer a precise measurement and attached only black-and-white photographs of the defect. Moreover, the Village submitted excerpts of the deposition transcripts of two employees of Jones Lang, who reviewed plaintiff’s color photographs of the defect and testified that such a defect “should be repaired” because it “could be a tripping hazard.” We therefore conclude that the court properly denied the Village’s motion for summary judgment regardless of the sufficiency of plaintiff’s opposing papers[.]”
  • Jacobsen v. Krumholz, 41 A.D.3d 128, 836 N.Y.S.2d 603, 2007 N.Y. Slip Op. 04713 (App. Div. 1st Dept. June 5, 2007): “In this action seeking damages for personal injuries allegedly resulting from a trip and fall on the border of a parking lot surface and the adjoining sidewalk, there were triable issues of fact as to whether the defect was trivial and as to whether defendant had constructive notice. The photographs depicted a lengthy irregular depression with a jagged edge …, and, although there were no adverse weather or lighting conditions at the time of plaintiff’s accident, and the area was not crowded, plaintiff testified at her deposition that she was concerned with vehicles entering and exiting the lot and therefore could not have been expected to be looking downward[.] … The store manager’s testimony regarding his lack of actual notice notwithstanding, plaintiff’s testimony that the defect was of long duration, as well as the photographs, support an inference that the complained—of condition was not suddenly created and raise a triable issue as to whether defendant could have obtained timely knowledge of it by the exercise of ordinary care[.]”
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