Trip and falls are among the most common causes of action in the practice of insurance defense. When a plaintiff alleges a trip and fall due to a sidewalk defect, defendants should consider whether that defect could be considered “trivial.”  If a defect can be considered trivial, defendants may benefit from retaining an expert engineer to opine on why the defect should be classified as such.

In Rosen v. Fifth Lenox Terrace Assoc., the plaintiff alleged that she tripped over a two-inch gap between two concrete flags on a sidewalk abutting a building in Manhattan.  In their motion for summary judgment in which they argued that the alleged defect was trivial, defendants submitted pictures of the sidewalk and an affidavit from their expert, a licensed professional engineer, who concluded that the raise between the sidewalk flags was less than ¼ of an inch, with a depth of up to one inch.  Additionally, defendant’s expert stated that the area where the plaintiff fell had no jagged edges and no features that would cause a specific tripping hazard. The plaintiff opposed the motion arguing that whether a defect is considered “trivial” is a factual issue that should be left to a jury to decide.

The Court reasoned that when seeking a dismissal based on a defect that is merely trivial, defendants must show that the defect is “physically insignificant and that the characteristics of the defect . . . do not increase the risks it poses.” Furthermore, the Court must examine all facts surrounding the physical characteristics of the defect including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury.”  The Court granted the defendants summary judgment motion holding that the expert report and photographs successfully established the trivial nature of the alleged sidewalk defect.

When dealing with a sidewalk defect, defense counsel should always consider whether the defect could be considered trivial. Hiring an engineer to help further establish this argument will usually be necessary to succeed on summary judgment.

Thanks to Jeremy Seeman for his contribution to this post.