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PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL.

The Fourth Department determined the evidence submitted by the plaintiff raised a question of fact about the cause of her fall because the evidence identified the only reasonable cause of the fall:

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We reject defendants’ contentions that there was no non-trivial defect in the temporary walkway and that plaintiff can only speculate as to the cause of her fall. “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case . . . , including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . The existence or non-existence of a defect ” is generally a question of fact for the jury’ ” … . Thus, “there 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 . . . and therefore . . . granting summary judgment to a defendant based exclusively on the dimension[s] of the . . . defect is unacceptable” … . Here, the record contains testimony and averments from plaintiff and her husband describing, as well as photographs depicting, the alleged defect and its location. Such evidence, considered as a whole, “render[s] any other potential cause of [plaintiff’s] fall [apart from the identified alleged defect] sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . Divens v Finger Lakes Gaming & Racing Assn., Inc., LP, 2017 NY Slip Op 04612 4th Dept 6-9-17

NEGLIGENCE (SLIP AND FALL, PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)/SLIP AND FALL (PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)/TRIVIAL DEFECT (SLIP AND FALL, PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)

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