Thomas M. Bona, P.C.

Attorneys At Law

The Court of Appeals Interprets (and Restricts) Trivial Defect Defense


As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent Court of Appeals case interpreting the trivial defect doctrine.


One of the defenses that can often be used in a slip and fall case is the trivial defect doctrine which prevents liability in a trip and fall matter where the defect complained of is too trivial to be actionable. Of course, finding what is trivial is often the difficulty. A recent case from the Court of Appeals which interprets and similarly restricts the trivial defect doctrine is of interest. 


In Hutchinson v. Sheridan Hill House Corp., the Court of Appeals reviewed three trip and fall trivial defect cases which were before it. In two of the cases, the Appellate Division had dismissed the complaint finding that the defect was trivial and in the third case, the Appellate Division held that the defendants had failed to show that the defect was trivial. The Court of Appeals first noted that a defendant seeking dismissal on a basis of a trivial defect must make out a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or surrounding circumstances do not increase the risk it poses. The Court explained that then and only then, does the burden shift to the plaintiff to establish an issue of fact. The Court of Appeals quoted that the well-known language of Trincere v. County of Suffolk, that “there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable”.


The Court of Appeals noted that in the first case the defendant had met its burden by showing that the cylindrical projection that plaintiff tripped on was trivial as a matter of law by producing measurements indicating that it was a quarter of an inch in height and about five eighths of an inch in diameter, together with evidence of the surrounding circumstances. Dimensions were set out in the record which contained photographs showing a ruler measurement of the object. The Court of Appeals found that taking into account all the circumstances and facts presented including, but not limited to, the dimensions of the metal object, the defect was trivial as a matter of law.


In the second case, the Court of Appeals reversed the Appellate Division which had found that the defect was trivial and not actionable. The Court of Appeals found that the chip that was missing on the nosing of an interior staircase was not a trivial defect and that the missing piece of step tread which was 33 of an inch and a 2 inch deep on the nosing, was where a person might step. The Court noted that an expert affidavit was submitted explaining the necessity for step treads to of uniform horizontal depth and that a person might step on such a defect, which required that the Court of Appeals find that he defect was not trivial.


In the third case, the plaintiff was injured when she fell on an interior staircase of an apartment building when her foot got caught in a “clump” in the middle of the stair over a protrusion in the step tread which had been painted over.  The Appellate Division had granted defendant’s motion finding that photographs accurately depicted the defect which was trivial. The defendants relied on the photographs as well as deposition transcripts and did not produce any measurements or other evidence of the dimension of the “clump”. The Court of Appeals found that the deposition transcript testimony and indistinct photographs without measurements was inconclusive. Without evidence of the dimensions of the “clump”, it was not possible to determine whether it was a trivial defect.


In explaining its rational in deciding each of the three cases, the Court of Appeals noted that they did not wish to imply that there are no cases in which a fact finding court could examine photographs and justifiably infer from them as a matter of law that an elevation or depression or other defect is so slight as to be trivial as a matter of law. The Court of Appeals however held that photographs in these cases whether alone or combined with deposition testimony could not support a ruling of triviality as a matter of law. The Court of Appeals wrote that “summary judgment should not be granted in a case in which the dimensions of the alleged defect are unknown and the photographs and descriptions are inconclusive”. The Court also found that in deciding whether a defendant had met its burden of showing triviality, the Court must avoid interjecting the question whether the plaintiff might have avoided the accident simply by placing his feet elsewhere.


The Court of Appeals has now seemingly imposed a requirement that defendants moving for summary judgment on the basis of a trivial defect include the dimensions of the defect as well as photographs in order to even be considered for summary judgment. The Court of Appeals has made it clear that photographs by themselves will not be sufficient.  Adjusters now should immediately upon receipt of a claim of a slip and fall where the defect could be considered trivial, obtain photographs and measurements of the defect so as to be able to successfully move for summary judgment later.


Should you have any questions, please call.

Thomas M. Bona