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Criteria for “Trivial Defect” and “Open and Obvious” Explained

The Second Department determined the defendants’ motion for summary judgment in a slip and fall case was properly denied.  The plaintiff tripped over a lock on sidewalk-level doors adjacent to the defendants’ property (the defendants were the property owner and the tenant in possession).  The defendants unsuccessfully argued the defect was trivial and open and obvious.  The court summarized the relevant law:

An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition … . “[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 and is generally a question of fact for the jury” … . However, liability will not be imposed for trivial defects which do not constitute a trap or nuisance … . “In determining whether a defect is trivial as a matter of law, a 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 circumstances of the injury” … .

While a possessor of real property has a duty to maintain that property in a reasonably safe condition …, there is no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous … . “Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … .  Doughim v M & US Prop Inc, 2014 NY Slip Op 05623, 2nd Dept 8-6-14

 

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