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Height Differential Between Concrete Slabs in Sidewalk “Trivial” As a Matter of Law

The Second Department determined a defect which caused plaintiff to trip was “trivial” as a matter of law. The defect was a difference in height between two concrete slabs in a sidewalk:

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 which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable… . Slattery v Sachen N High Sch, 2014 NY Slip Op 01310, 2nd Dept 2-26-14

 

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