Practice point: Plaintiff sought damages for injuries sustained when
he tripped and fell on a sidewalk located in front of the premises
owned by defendant. While walking on the sidewalk, plaintiff's right foot got caught on a round metal screw or other object that
was protruding from the sidewalk. The metal object or screw appeared to
have been placed in the concrete as part of the construction of the
sidewalk and was never removed. According to plaintiff, he saw the metal
object after he fell, and had never seen it before, although he had
passed the location at least one hundred times before the accident.
Defendant established its entitlement to judgment as a matter of
law. The record presented failed to establish that the claimed defect
was actionable. Defendant established that the the metal screw or other
object was just five-eighths of an inch in diameter and protruded only
about three-sixteenths of an inch above the surface. This minor height
differential alone is insufficient to establish the existence of a
dangerous or defective condition.
Defendant also demonstrated that it did not have notice of any
defect by submitting testimony from its maintenance personnel who stated
that they cleaned the sidewalk every morning
and had never noticed the metal object until after the accident.
Defendant also showed that there was no record of complaints about the
condition of the sidewalk
Student note: Plaintiff did not come forward with any evidence to show that
this trivial defect could have been a trap or snare by reason of its
location, adverse weather or lighting conditions or other circumstances. His expert's report was insufficient to raise such
an issue since the expert visited the site more than two years after the
accident, and, by that time, the condition had been corrected. Thus, the
expert's opinion was speculative, conclusory and not based on
foundational facts, such as the exact measurements of the defect at the
time of the accident.
Case: Hutchinson v. Sherridan Hill House Corp., NY Slip Op 06822 (1st Dept. 2013).
Here is the decision.
Monday's issue: Dissolved corporations, assignees, and standing.
