Under New York law, the owner or manager of residential or commercial property has a duty to exercise reasonable care to minimize the risk of injury to persons legally on the property. It’s not uncommon, though, for defense attorneys to seek and obtain a dismissal of such a claim, based on the argument that the injury was caused by a trivial defect, even if the injury was substantial. Though the courts have long held that determining what constitutes “trivial” may be difficult, the matter was recently addressed again, in three separate cases.

In Hutchinson v. Sheridan Hill House Corporation, the Court of Appeals concluded that the defect was trivial, though the factors that made it trivial were not related to its size. Instead, the court found the defect trivial because it was in the middle of the sidewalk, in a location with adequate lighting, and there were no other factors, such as a crowd of people, that prevented the injured person from looking down as he walked.

In Adler v. QPI-VIII LLC, the injured party was hurt when she caught her foot on a “big clump” that had been painted over on interior stairs. The woman lived in the building, and acknowledged that there was adequate lighting and that there was no debris or dirt on the stairway. In this case, the court overturned an earlier ruling dismissing the case because of a purported “trivial defect,” saying that, because no measurements had been taken on the “clump,” it could not be determined if it was “trivial.”

In the third case, Zelichenko v. 301 Oriental Boulevard LLC, the plaintiff tripped on a chip in the front of a step that measured 1/2 inch by 3 1/2 inches. The defendants sought to have the claim dismissed, arguing that it was a trivial defect. The plaintiff objected, saying the trivial defect defense should only apply to municipal liability. The court disagreed, but held in favor of the plaintiff, saying what really mattered was whether persons using the stairway would naturally avoid the chip while coming down the stairs.

The upshot of the three decisions? It’s still pretty unsettled as to what will or will not constitute a trivial defect in a premises liability case.

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