Anyone who has walked the sidewalks in New York City is aware of the ubiquitous cellar doors that open up to basement storage areas for the many businesses that line the streets.  So the question is what duty is owed to pedestrians  who must navigate the sidewalks over and around those doors.

In Boynton v. Haru Sake Bar, the plaintiff allegedly tripped over cellar doors located on the sidewalk adjacent to the defendant’s restaurant.  There was a height differential of one half inch between the cellar doors and the sidewalk.  The defendant moved for summary judgment arguing that the hatch doors were not open at the time of the accident and that the height differential between the doors was trivial.  The court agreed that such a differential was trivial and that summary judgment would be granted on this basis – but for the plaintiff’s claim that it was not the differential that caused her to fall but rather movement of the doors.

The lower court and the First Department found that this theory presented a triable issue of fact.  The plaintiff and her husband cited boxes that were being delivered to the sidewalk in front of the doors at the time of the accident.  They argued that the doors were moved from the inside just as she was walking over them – presumably in connection with the delivery.  While the defendant could not be liable for the trivial differential, the court ruled that the restaurant could be potentially liable if the doors shifted due to activity underneath.

Special thanks to Georgia Stagias for her contribution.

For more information, contact Denise Fontana Ricci at .