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Question of Fact Whether ¾ Inch Height Differential Was “Trivial”

In a slip and fall case, the Second Department reversed Supreme Court and determined there was a question of fact whether a defect, a ¾” height differential in a walkway, was “trivial:”

“Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law” … . “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 circumstances of the injury'” … . There is no “minimal dimension test” or per se rule that a defect, in order to be actionable, must be a certain height or depth … .

Here, in support of their motion, the Jamaica Seven defendants submitted evidence, including photographs, which showed that the bricks within the section of the entranceway where the plaintiff tripped were depressed below the adjacent public sidewalk, causing a height differential of at least 3/4 of an inch. This evidence, including the plaintiff’s deposition testimony, was insufficient to demonstrate as a matter of law that the alleged defect was trivial and, therefore, not actionable… . Cardona-Torres v City of New York, 2013 NY Slip Op 05870, 2nd Dept 9-18-13

 

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