Generally, whether a dangerous or defective condition exists on the property of another so as to create liability depends on the facts of each case and is generally a question of fact for the jury. However, it is well established that a trivial defect that does not constitute a trap or nuisance that would cause someone to trip is not actionable. Despite this established standard, New York’s lower courts’ decisions on the issue of trivial defects have been inconsistent. In fact, some judges believe that by raising the trivial defect argument a defendant creates a question of fact for a jury. [i]Kehoe v. The City of New York[/i], is the latest example of a court’s failure to adhere to the established standard. In [i]Kehoe[/i], the plaintiff tripped and fell in front of defendant Avitable’s property, resulting in her death. The defendant moved for summary judgment on the grounds that the defect was trivial as a matter of law and not actionable. The Supreme Court, Kings county denied the defendant’s motion, but the Appellate Division, Second Department reversed finding that the defendant established that the defect was trivial and did not possess the characteristics of a trap or nuisance.

Thanks to Ed Lomena for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07006.htm