To determine whether a defect is trivial as a matter of law, a court must examine the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury. A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted. 

 In Tesoriero v. Brinckerhoff Park, LLC, the Appellate Division, Second Department reversed the trial court’s ruling that granted defendant’s motion for summary judgment where the plaintiff, while walking in a parking lot owned by the defendant, stepped into a puddle filling a depression in the pavement and fell.  Defendant argued that the depression that allegedly caused the injured plaintiff to fall was trivial and therefore, not actionable.

 Defendant submitted an affidavit of one of its partners who estimated that the depression in the pavement was gradual, three quarters of an inch deep, and about two feet wide.  However, plaintiff testified that it was raining when she fell, that the depression was filled with rainwater, and that the parking lot was darker than usual because one of the overhead lights was not working. Under the circumstances, the Appellate Division found that evidence the defendant submitted in support of the motion did not demonstrate, prima facie, that the alleged defect was trivial and therefore, not actionable. 

Thus, what is “trivial” may well depend on the surrounding circumstances. 

Thanks to Johan Obregon for his contribution.

For more information, contact Denise Fontana Ricci at .