Practice point: Photographs which fairly and accurately represent the accident
site may be used to establish that a defect is trivial and not
actionable. Here, the photographs submitted by the school district depict a lengthy crack in the pavement which was at least
¾ of an inch deep and approximately 4 inches wide at the specific site
of the accident. Given the high-traffic location of the occurrence, the
length, depth, width, and irregularity of the defect, and the
circumstances of the accident as set forth in witness testimony, the
school district failed to meet its prima facie burden of establishing
that the defect was trivial and nonactionable as a matter of law.
Student note: In determining whether a defect is trivial, courts must examine
all of the facts presented, including the width, depth, elevation,
irregularity, and appearance of the defect, and the time, place, and
circumstances of the accident. There is no minimal
dimension test or per se rule that a defect must be of a certain
minimum height or depth in order to be actionable.
Case: Brenner v. Herricks Union Free Sch. Dist., NY Slip Op 03290 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Motions for an extension of time and reargument.
