NO SHOWING RUG OVER WHICH PLAINTIFF TRIPPED WAS NOT FLUSH TO THE FLOOR, HEIGHT DIFFERENTIAL WAS TRIVIAL, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED.
The Fourth Department, over a dissent, reversing Supreme Court, determined plaintiff’s slip and fall complaint should have been dismissed. Plaintiff alleged he tripped on the corner of a rug. The Fourth Department found, as a matter of law, the rug was in place and plaintiff’s foot went under it. The height of the rug was a trivial, nonactionable defect:
… [W]e conclude that defendant established as a matter of law that the alleged defect created by the placement of a rug in the vestibule and any apparent height differential between the rug and the floor “is too trivial to be actionable” … . “[T]he test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Defendant’s submissions established that the accident occurred between approximately 10:00 and 10:30 a.m., when it was “bright enough to see.” Plaintiff was entering defendant’s restaurant behind his son, and there were no other customers in the vicinity. The photograph submitted by defendant depicting the rug does not reveal any defect or irregularity with the rug, and the videotape of the incident shows that the area where plaintiff fell was unobstructed, no other patrons had an issue traversing through the doors and over the rug, and there was no appreciable ripple or other height differential present in the rug to cause a tripping hazard. Thus, after examining the photograph and the video depicting the placement of the rug in the vestibule, and ” in view of the time, place, and circumstances of plaintiff’s injury,’ ” we conclude that defendant established as a matter of law that any defect in the rug was too trivial to be actionable … . Langgood v Carrols, LLC, 2017 NY Slip Op 02528, 4th Dept 3-31-17