The Appellate Division, Second Department, reversed the lower court and granted defendant's motion for summary judgment. Therein, the plaintiff was walking on a sidewalk abutting the defendant's real property when she tripped and fell and was injured. Three days later, she died of complications from her fall. The plaintiff's estate sued and the defendant moved for summary judgment dismissing the complaint on the ground that the defect was trivial as a matter of law. The Appellate Court reasoned as follows:
Generally, whether a dangerous or defective condition exists on the property of another so as to create liability "depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (citation omitted). However, not every injury allegedly caused by a defect in a sidewalk must be submitted to the jury. "[A] trivial defect on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes or trip on a raised projection, is not actionable" (citation omitted). In determining whether a defect is trivial as a matter of law, the court should consider "the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury" (citation omitted).
Upon reviewing photographs of the specific defect at issue, the court held that the alleged defect was not actionable, as it was trivial and did not possess the characteristics of a trap or nuisance. Thus, granted defendant's motion for summary judgment.
.
