Practice point: Property owners may not be held liable for trivial
defects, not constituting a trap or nuisance, over which a pedestrian
might merely stumble, stub a toe, or trip. There is no minimal dimension test or per se rule that the condition
must be of a certain height or depth in order to be actionable. In determining whether a defect is trivial as a matter of
law, the court must examine all of the facts presented, including the
width, depth, elevation, irregularity and appearance of the defect, in addition to the time, place and circumstances of the injury. Photographs which fairly and accurately represent the
accident site may be used to establish that a defect is trivial and, therefore, not
actionable.
Student note: Generally, the issue of whether a dangerous or defective condition
exists depends on the facts of each case, and is a question of fact for
the jury to decide.
Case: Adler v. QPI-VIII, LLC, NY Slip Op 00320 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: An application to stay arbitration.
