Wade Clark Mulcahy LLP

When somebody becomes injured due to a defect that is present, have you ever wondered if that very defect was even substantial enough to actually cause injury? If there is a defect that seems so minimal and the claimant claims that their injury was related to it, can they still prevail despite the minor nature?  Well, there is a standard that is used to determine if a defect is “trivial”, or in other words, not significant enough to create liability.

Just recently, in Angelo Tamburo v. Long Island University, bearing Index No. 611006/20, the Supreme Court, Appellate Division reversed an order from the Supreme Court in Nassau County, in which summary judgment was granted. The plaintiff commenced this action after slipping and falling on the top step of a stairway at a property owned by the defendant. Plaintiff argues that the slope of the step is not in compliance with NYS Building Codes. Defendant filed a Motion for Summary Judgement, arguing that an expert inspected the staircase, and the staircase was not only compliant with the applicable building codes and did not constitute a dangerous or defective condition, but any defect that did exist was “trivial”. Generally, when determining whether a dangerous or defective condition created liability, this is very fact specific and usually a question for the jury. However, injuries resulting from trivial defects are not actionable. A defect is trivial if the defect is physically insignificant and does not increase the risk it poses. The defendant was able to meet this standard. The Supreme Court Nassau County granted this motion as a result.

On appeal, the Supreme Court, Appellate Division reversed the order. The court ruled that the plaintiff did in fact raise triable issues of fact as to whether the slope of the step constituted a dangerous or defective condition. The plaintiff submitted a report of an expert, who came to the determination that the slope of the step was six to eight times greater than permitted by NYS Building Code. The court noted that the evidence that the defense relied upon failed to establish that the defendant didn’t create the condition or have actual or constructive notice.