Friday, January 8, 2016

Trivial defects.

Practice point:  A property owner will 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. 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 circumstances.

Student note:  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. Photographs that fairly and accurately represent the accident site may be used to establish that a defect is trivial.

Case:  Mazza v. Our Lady of Perpetual Help R.C. Church, NY Slip Op 09657 (2d Dep't 2015)

Here is the decision.

Monday's issue:  Restoring a case after more than one year.