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ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a one-inch gap between sidewalk slabs was a non-actionable trivial defect:

Generally, the issue of whether a dangerous or defective condition exists on the property of another depends on the facts of each case and is a question of fact for the jury… . However, 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 … . “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must 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. Only then does the burden shift to the plaintiff to establish an issue of fact” … .

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” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain 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” … .

Here, the evidence submitted by the defendants in support of their motion for summary judgment, including the deposition testimony of the plaintiff and photographs of the accident site, was sufficient to establish, prima facie, that, given the characteristics of the defect and the surrounding circumstances, the gap at issue was trivial, and therefore, not actionable … .  Melia v 50 Ct. St. Assoc., 2017 NY Slip Op 06176, Second Dept 8-16-17

 

NEGLIGENCE (SLIP AND FALL, SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, TRIVIAL DEFECT, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/TRIVIAL DEFECT (SLIP AND FALL, SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))/SLIP AND FALL (SIDEWALKS, ONE INCH GAP BETWEEN SIDEWALK SLABS WAS A NON-ACTIONABLE TRIVIAL DEFECT (SECOND DEPT))

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PLAINTIFF DEMONSTRATED FREEDOM FROM COMPARATIVE FAULT IN THIS TRAFFIC ACCIDENT... QUESTIONS OF FACT RAISED ABOUT THE SCHOOL’S KNOWLEDGE OF A STUDENT’S...