Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/01/Dingman-v.-Linchris-Hotel-Corp..pdf">Dingman v. Linchris Hotel Corp.</a></em>, NY Slip Op 00168 (2d Dept. 2022), a plaintiff sustained injury in a trip and fall in a hotel lobby undergoing construction where the lobby floor was being re-tiled. Some parts had new tile, while others had no tile at all, exposing the cement floor. Plaintiff tripped on the difference in elevation from the new tiles and the lobby floor, which the hotel manager testified was approximately ¼ inch in height difference. The hotel moved for summary judgment arguing the “defect” on the lobby floor was trivial. The trial judge denied summary judgment to the defendant and the Second Department overturned that decision thereby granting summary judgment to the hotel and dismissing the claim.</p>
<p style="text-align: justify;">“A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury’ (<em>Trincere v County of Suffolk</em>, 90 NY2d at 978. There is no ‘minimal dimension test’ or per se rule that the condition must be of a certain height or depth in order to be actionable.”</p>
<p style="text-align: justify;">By submitting photographs and testimony from the construction workers, the Second Department reasoned that the small height difference between the newly tiled floor and the cement sub-flooring was “physically insignificant.” The Appellate Court took note that the physical defect and the surrounding circumstances did not increase the risk of a tripping hazard. Plaintiff could not establish any triable issues of fact in opposition to that argument, and the claims against the defendant were dismissed.</p>
<p style="text-align: justify;">The Court showed some clarity in affording property owners some relief for trivial defects on a premises liability claim. In the event of a reported personal injury involving a trip and fall, property owners/tenants would be prudent to take multiple photographs immediately upon learning of the accident. The photographs of the alleged defect should be taken, up close and preferably with a measurements to establish the height differential of the alleged defect. Photographs should also be taken of the surrounding scene of the accident to establish that the defect did not increase the risk of a trip and fall. Taking down statements and photographs of the scene of the accident can also prove vital in defending against liability if and when a claim heads to court.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this article.  Should you have any questions, please contact <a href="mailto:tbracken@wcmlaw.com">Thomas Bracken</a>.</p>