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The Rogak Report: 10 Oct 2006 ** Premises Liability - Trivial Defects **

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  • Lawrence Rogak
    TRIVIAL DEFECT IN SIDEWALK RESULTS IN SUMMARY JUDGMENT FOR DEFENDANT Gisele Ambroise v New York City Transit Authority 2006 NY Slip Op 07132 Decided on
    Message 1 of 1 , Oct 9, 2006
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      "TRIVIAL DEFECT" IN SIDEWALK RESULTS IN SUMMARY JUDGMENT FOR DEFENDANT

      Gisele Ambroise v New York City Transit Authority

      2006 NY Slip Op 07132
      Decided on October 3, 2006
      Appellate Division, Second Department
      Edited by Lawrence N. Rogak
       

      Defendant Transit Authority appealed from an order denying its motion for summary judgment in a personal injury action.  The Appellate Division reversed.

      "The issue of whether a dangerous or defective condition exists on property depends on the particular facts of each case, and generally presents a question of fact for the jury (see Trincere v County of Suffolk, 90 NY2d 976, 977; Taussig v Luxury Cars of Smithtown, 31 AD3d 533; Hagood v City of New York, 13 AD3d 413). However, a property owner may not be held liable for trivial defects, not constituting a trap or a nuisance, over which a person might merely stumble, stub his or her toes, or trip (see Taussig v Luxury Cars of Smithtown, supra; Hagood v City of New York, supra). 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" (Trincere v County of Suffolk, supra at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274). "

      "In support of its cross motion for summary judgment, the defendant submitted evidence including photographs of the slightly raised area of concrete which allegedly caused the plaintiff's accident, and the plaintiff's deposition testimony describing the defect. Considering the appearance of the defect, which did not have any of the characteristics of a trap or snare, and the other relevant circumstances of the accident, the defendant's submissions were sufficient to make a prima facie showing that the alleged defect was too trivial to be actionable (see Taussig v Luxury Cars of Smithtown, supra; Bekritsky v TACS-4, 27 AD3d 680; Trampakoulous v Independent Coach Bus Co., 18 AD3d 739; Chillemi v National Birchwood Corp., 16 AD3d 612; Murray v City of New York, 15 AD3d 636; Torres v City of New York, 300 AD2d 391). In opposition, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court should have granted the defendant's cross motion for summary judgment dismissing the complaint. "

      Comment: The trivial defect doctrine is a useful tool, but the trouble with it is that its criteria are so subjective that it leaves both attorneys and judges guessing as to which defects are legally trivial and which are not.  The case at hand is obviously one of those, because the Supreme Court judge deemed the defect not to be a trivial one.

      As the Court ruled here, a trivial defect must not have any of the characteristics of a trap or a snare.  What, I ask, are the characteristics of a trap or a snare?  To me, a "trap" is a set of steel jaws connected by a powerful spring, and held open by some kind of hook or latch which, when disturbed, causes the steel bar to snap shut on a victim's leg or neck.

      And a "snare," to me, is a loop of rope lying hidden on the ground, attached to a spring, which, when trod upon, causes the loop to wrap around the victim's leg and catapult him into the air, where he will hang, suspended by the rope, until the local tribesmen come along and carry him off to their village, where he will be cooked in a huge pot of water with carrots and onions.

      I confess I have never seen a sidewalk crack look like a trap or a snare.  So are they all trivial defects?

      Larry Rogak

       

       

       

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