The defendants in Deviva v. Bourbon Street Fine Foods & Spirit, et al., 2014 NY Slip Op 02255 (2d Dept. 2014) found this old adage to unfortunately still ring true. In Deviva, the plaintiff allegedly tripped, fell, and was hurt. One defendant moved for summary judgment, alleging the defect was trivial in nature. The Court granted this motion and, upon searching the record, also awarded summary judgment to the other defendants.
In moving for summary judgment, parties may submit photographs which accurately depict the condition of the area of the accident site to establish whether a defect is trivial and therefore not actionable. The Court uses these photographs to help determine if the defect is trivial, typically focusing on the width, elevation, irregularity and appearance of the alleged defect. In taking testimony before trial, the defense should request the plaintiff to properly identify and mark these photographs as demonstrating the conditions of the site of the alleged accident.
In Deviva, the Second Department found the poor quality of the only photograph acknowledged by plaintiff to accurately depict the condition of the area to be insufficient evidence to establish as a matter of law that the alleged defect was trivial, so it reversed the trial court’s decision. The other photographs the moving defendant attached (from its investigator) were not acknowledged by the plaintiff to accurately depict the condition of the area, so they also were insufficient to establish as a matter of law that the alleged defect was trivial.
We learn from Deviva that moving for summary judgment on the defense of trivial defect based on photographic evidence takes three entities working in unison. The defendant’s investigator (if utilized) must take clear photographs of the alleged trivial defect, the defense attorney must mark the photographs at plaintiff’s deposition, and the plaintiff must identify these photographs as fairly and accurately representing the condition of the defect. As masterful a writer as an attorney may be, “a [clear] picture is worth a thousand words” when moving for summary judgment based on a trivial defect.