Wednesday, August 9, 2017

In a trip-and-fall action, a trivial defect.

Practice point:  In moving to dismiss on this basis, a defendant must make a prima facie showing that the defect is physically insignificant, and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses.

Student note:  On a sufficient showing, the burden shifts to the plaintiff to establish an issue of fact.

Case:  Chojnacki v. Old Westbury Gardens, Inc., NY Slip Op 05706 (2d Dep't July 19, 2017)

Here is the decision.

Tomorrow's issue:  A religious corporation's sale of real property.