In a Slip and Fall Case, Plaintiff Was Unable to Raise a Question of Fact About Whether a Defect in a Concrete Slab Was More than “Trivial”—Criteria Explained

The Third Department determined a slip and fall complaint was properly dismissed because plaintiff failed to raise a question of fact about whether the chip in a concrete slab was more than a trivial, nonactionable, defect:

Generally, whether a condition is dangerous or merely a nonactionable, trivial defect is a factual question for a jury to resolve … . An owner will not be liable, however, for “‘negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance,'” which may cause “‘a pedestrian [to] merely stumble, stub his [or her] toes, or trip over a raised projection'” … . Accordingly, it is sometimes appropriate, after “consideration of such relevant factors as the dimensions of the alleged defect . . ., including [its] width, depth, elevation, irregularity, and appearance . . .[,] as well as the time, place, and circumstances of the injury” … to conclude as a matter of law that a defect is too trivial to be actionable … . * * *

Under these circumstances, and upon review of the color photographs of the defect, we conclude that defendants met their initial burden of establishing that the chip in the edge of the curb was a trivial defect … . In response to defendants’ prima facie showing, plaintiffs were obligated to submit “evidence to establish that the alleged defect has the characteristics of a trap, snare or nuisance” … . Given the undisputed circumstances of plaintiff’s fall, her attorney’s affirmation, which was of no probative value, was an insufficient response to defendants’ prima facie showing … . Gillis v Herzog Supply Co Inc, 2014 NY Slip Op 07220, 3rd Dept 10-23-14