Analytical Criteria for Determining Whether a Defect Is Trivial Explained

The Court of Appeals, in a full-fledged opinion by Judge Fahey, tackled the topic of “trivial defects” in slip and fall cases.  The court looked at three actions where the defect was deemed trivial, and reversed two of them. The court explained the analytical principles:

The repetition of the phrase “not constituting a trap” in many Appellate Division opinions should not be taken to limit the means by which a plaintiff may demonstrate a question of fact concerning the hazard posed by a physically small defect. Liability does not “turn[] upon whether the hole or depression, causing the pedestrian to fall, . . . constitutes ‘a trap’ ” … . The case law provides numerous examples of factors that may render a physically small defect actionable, including a jagged edge …; a rough, irregular surface …; the presence of other defects in the vicinity …; poor lighting …; or a location — such as a parking lot, premises entrance/exit, or heavily traveled walkway — where pedestrians are naturally distracted from looking down at their feet … .

Our survey of such cases indicates that the lower courts, appropriately, find physically small defects to be actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot. Attention to the specific circumstances is always required and undue or exclusive focus on whether a defect is a “trap” or “snare” is not in keeping with [our precedent]. Hutchinson v Sheridan Hill House Corp., 2015 NY Slip Op 07578, CtApp 10-20-15