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IN THIS SLIP AND FALL CASE, THE DEFECT IN THE STAIRWAY WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defect in the stairway alleged to have caused plaintiff’s slip and fall was trivial as a matter of law:

,,, ” [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 [an] 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 photographs of the allegedly dangerous condition, which included measurements taken by the plaintiff’s investigator, revealed that the condition on which the plaintiff allegedly fell was depressed approximately 3/16 of an inch at the edge of the stair on which she fell. Moreover, the plaintiff testified that she had previously traversed the stairway without incident, was aware of the condition of the steps, and was looking down at the stairs as she carried a queen-size comforter when she fell. Under these circumstances, the defendants established, prima facie, that any defect that existed was trivial as a matter of law … . Rene v Livingston Gardens, Inc., 2025 NY Slip Op 05004, Second Dept 9-17-25

Practice Point: Consult this slip and fall decision for an example of a defect in a stairway deemed trivial as a matter of law.

 

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