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"Trivial" Defect in Sidewalk Does Not Constitute a Dangerous Condition

February 24, 2011

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In Vasquez v. JRG Realty Corp. et al., the First Department examined a personal injury case in which a plaintiff alleged that she tripped and fell in front of defendants' property and suffered personal injuries. The defendants argued that the supposed defect on which plantiff tripped was a trivial one, in that based upon their measurements, the "defect" was approximately the height of a nickel.

In opposition, although plaintiff failed to submit any expert testimony, she testified at her deposition that the defect was approximately three quarters of an inch to one inch. The Court granted defendants' motion for summary jusgment after finding that plaintiff's testimony was speculative (not to mention that plaintiff's account seems to corrorborate the measurements of the defendant's expert). Moreover, the Court found that plaintiff failed to rebut defendants' argument that the defect was trivial.

Not surprisingly, the Court does not specficically define what does or does not constitute a trivial defect. As such a determination must be made on a case by case basis based upon the facts. Nevertheless, the Court sets a precedent here in that a defect the size of a nickel or smaller (i.e., a dime or a penny?) may be regarded as a trivial one under similar facts to this case.

Thanks to Brian Gibbons for his contribution to this post.

<a href="http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01349.htm">http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01349.htm</a>

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