In Bruinsma v. Simon Property Group Inc., defendants in a premises liability action attempted to move for summary judgment on the basis that the defect was “trivial.” However, the lower court found that defendants failed to demonstrate absence of constructive notice.
Plaintiff claimed she suffered injuries after she tripped and fell on what she described as a “bubble” on the floor of the Smith Haven Mall. Defendants moved for summary judgment claiming they had no notice of the defect, and that it was otherwise trivial, and thus not actionable.
The Supreme Court, Suffolk County, denied defendants’ motion. Defendant’s appealed and the Appellate Division, Second Department affirmed. It held that defendants failed to make a prima facie showing that the defect was trivial — stating: the court must look at “the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury” (citation omitted). Based on this analysis, the Second Department held the evidence in the record raised an issue of fact as to whether the defect was trivial, and affirmed the lower court’s decision.
Thanks to Alison Weintraub for her contribution to this post.