Size Isn't Everything: Trivial Defects Under 'Hutchinson'
In their Trial Practice column, Robert S. Kelner and Gail S. Kelner discuss the issues raised where a defendant seeks dismissal of an action where a tripping defect gave rise to injury by alleging that the defect was trivial and not actionable as a matter of law.
November 23, 2015 at 03:22 PM
13 minute read
Does size matter in assessing whether a defect on a stairway or sidewalk is actionable? The answer is clearly that size matters, but it isn't everything. There are two significant issues that may arise in assessing whether an action may be maintained where a tripping defect gives rise to injury. The initial issue is whether the defect is so trivial as not to constitute an actionable defect. The second consideration is whether the defendant may be charged with the requisite notice of the defect. In this column, we will address the issues raised where a defendant seeks dismissal of such an action by alleging that the defect was trivial and not actionable as a matter of law.
Historically, most notably in Loughran v. City of New York, 298 N.Y. 320 (1948) and then in Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997), the Court of Appeals established that there is no “'minimal dimension test'—or per se rule that a defect must be a certain minimum height or depth to be actionable.”1 It did, however, recognize that certain defects, including the one actually at issue in Trincere, may be sufficiently trivial to justify dismissal as a matter of law. These decisions made it clear that although not every injury caused by a hole or elevated slab should be submitted to a jury, “a mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable.”2
In determining whether a defect in a sidewalk, stairway or other walkway is actionable or not, the court must consider a panoply of factors, including the width, depth, elevation, irregularity and appearance of the defect as well as the time, place and circumstances of the injury.
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
Trending Stories
- 1The Law Firm Disrupted: For Big Law Names, Shorter is Sweeter
- 2Wine, Dine and Grind (Through the Weekend): Summer Associates Thirst For Experience in 'Real Matters'
- 3The 'Biden Effect' on Senior Attorneys: Should I Stay or Should I Go?
- 4BD Settles Thousands of Bard Hernia Mesh Lawsuits
- 5First Lawsuit Filed Alleging Contraceptive Depo-Provera Caused Brain Tumor
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250