- The Court of Appeals Revisits and Upholds the Trivial Defect Defense
- October 30, 2015
- Law Firm: Abrams Gorelick Friedman Jacobson LLP - New York Office
- Hutchinson v. Sheridan Hill House Corp., -- N.Y.3d -- (October 20, 2015)
After almost twenty years, the New York Court of Appeals has revisited the trivial defect defense. Rather that break new ground, the Court reinforced its holdings in the seminal trivial defect case, Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997). The Court heard appeals from three different plaintiffs and decided them together.
The Hutchinson Court reaffirmed that a trivial defect finding based solely on dimensions is unacceptable. The Court cautioned against placing undue emphasis on whether a particular defect is a "trap" or "snare". Instead, courts must consider all surrounding facts and circumstances presented in each case. Even a small or insignificant defect can be actionable where its intrinsic characteristics or the surrounding circumstances magnify the dangers posed to a pedestrian. These can include circumstances that make it difficult to see or safely traverse.
In the Hutchinson case, the Court found a metal sidewalk protrusion measuring 1/4 inches high and 5/8 inches in diameter to be a trivial defect. The Court noted that the test was not whether the defect was one that was "capable" of catching one's shoe, but rather whether the defect was difficult for pedestrians to see, to identify as a hazard, or safely traverse under the circumstances presented. The Court found that the circumstances cut against finding an actionable defect because it was well illuminated, was in the middle of an uncrowded sidewalk, stood alone, was unhidden, and was on an otherwise level surface.
The Court further found that a claimed chipped tread nosing on an interior stairway raised a question of fact on the issue of trivial defect. The chip measured 3 1/2 inches wide and at least 1/2 inches deep. Except in unusual circumstances, a finding of triviality cannot be based on a determination that plaintiff could have avoided the defect by placing his feet elsewhere. The Court relied upon an expert affidavit that the nosing was part of the walking surface. Given its irregular shape, location in an area where a person may step, and an expert affidavit addressing the importance of uniform horizontal tread depth to safely traverse a stairway, the Court found a question of fact as to whether the defect was trivial. Notable for defense counsel, the Court declined plaintiff's invitation to rule that the trivial defect doctrine should be limited to municipal defendants and that it should only apply to outdoor, not interior, surfaces.
Lastly, the Hutchinson Court declined to find triviality as a matter of law when a plaintiff tripped and fell on a clump located on an interior step. The defendant failed to meet its initial prima facie burden showing its entitlement to dismissal. The fatal flaw in the defendant's motion was a lack of any defect measurements. While not every case requires measurements, here, the Court found the testimony and photographs were inconclusive and insufficient to find triviality as a matter of law.
After Hutchinson, the trivial defect defense remains a viable, albeit, narrow defense, available to private property owners, and municipalities alike, interiors and exterior accidents, and stairway accidents.