Feldman, Kronfeld & Beatty Law Blog

Wednesday, October 21, 2015

Court of Appeals Alert: Trivial Defects Discussed in Depth in Hutchinson

On October 15, the Court of Appeals had a huge and in-depth discussion of three trip-and-fall personal injury cases that arrived on its docket on a motion for summary judgment for the triviality of the defect. In discussing the defect, the Court gave practitioners a good perspective on future slip and fall cases. To summarize, the Court gave three clarifying notes:

1)  The triviality of a defect does not have to do with its height or other physical characteristics so much as it has to do with whether its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses.

2) The relevant question is not whether the defect is capable of being a trap, but whether the defect was difficult to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.

3) The defendant must make a prima facie showing of the triviality of the defect as a matter of law.

More, after the jump . . .

The Court addressed three cases on review: Leonard Hutchinson v. Sheridan Hill House Corp., Matvey Zelichenko v. 301 Oriental Boulevard, LLC, and Maureen Adler v. QPI-VII, LLC. In Hutchinson, the defendant won on summary judgment, as the Appellate Division found that the defect, here a metal protrusion in the sidewalk of a quarter inch in height and five-eights of an inch in diameter, was trivial as a matter of law. The same went for Zelichenko, who argued that his "trivial" defect, a half-inch deep chip on the far edge of a stair, should not be used for interior spaces like stairs. Finally, for Adler, the painted-over clump on the step tread of a stair well was found to be trivial as a matter of law.

The Court began the discussion with Trincere v. County of Suffolk, a 1997 case holding that there was no minimum dimension test or per se rule that a defect had to have certain physical characteristics to be actionable. For an action to be trivial, it must be trivial based on all of the specific facts and circumstances of the case, not just the size alone. The Court states that these cases " . . . establish the principle that a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperils the safety of a pedestrian."

It then listed a number of factors that would render a physically small defect actionable, like a jagged edge, a rough, irregular surface, the presence of other defects in the vicinity, poor lighting, or a location (such as a parking lot, premises entrance/exit, or heavily traveled walkway) where pedestrians are naturally distracted from looking down at their feet. These characteristics share the common feature of either being difficult for a pedestrian to see or identify as a hazard or difficult to traverse safely on foot.

It lastly considers Adler, which we will consider firstly because of its significance. Namely, it addresses the basic principle of summary judgment law, known to every law student, that the movant must make a prima facie showing of entitlement to judgment as a matter of law before the burden shifts to the opposing party to oppose. Because the defendants in Adler did not submit expert testimony as to the dimensions of the defect, nor did they submit photographs that a Court could fairly and accurately represent the accident site, the Court ruled that the defendants did not meet their burden.

We now turn to Hutchinson. The dimensions of the defect were set out in the record on appeal, which also contained photographs showing ruler measurements. The Court ruled that the object was trivial, not primarily due to its height, but also because it "was in a well-illuminated location approximately in the middle of the sidewalk and in a place where a pedestrian would not be obliged by crowds or physical surroundings to look only ahead. The object stood alone and was not hidden or covered in any way so as to make it difficult to see or to identify as a hazard. Its edge was not jagged and the surrounding surface was not uneven." This is a clear roadmap for the practitioner to use in analyzing a potential slip and fall case for the potential of winning a motion of summary judgment.

Finally, Zelichenko brings us another new aspect to trip-and-fall personal injury law. The plaintiff's expert testified that considering how a person would walk down the stairs, the chip would be naturally part of the walking surface even if it was on the edge of the step tread. The Court states, "[w]hat counts here is not whether a person could avoid the defect, but whether a person would invariably avoid the defect while walking in a manner typical of human beings descending stairs." And so the summary judgment motion was denied.

And so the Court ended, unanimously, in a sharp rebuke to the lower courts, there are no shortcuts to summary judgment in a slip-and-fall case.

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