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A NOT SO TRIVIAL ANALYSIS

Image credit: Jeff Hopkins

Image credit: Jeff Hopkins

How small is too small when it comes to trip hazards on New York City sidewalks? New York courts, grappling with this issue for over 125 years, have declined to advance a standard based solely on the size or dimensions of the defect or hazard and instead have opted to evaluate each slip, trip and fall case on the merits under a totality of the circumstances test. The result is that it is difficult for the City and private premises owners to win dismissal on trip and fall cases based on the triviality of the defect.

Under the common law, municipalities generally have the duty to keep their streets and sidewalks in a reasonably safe condition. To prove a breach of this duty, a plaintiff who tripped on a sidewalk trip hazard and was injured must prove that the municipality either caused the defective condition, or that a condition caused by natural occurrences or a third party existed for a sufficient amount of time that the municipality had constructive notice of and could have repaired the condition. Unless actual notice is established, latent defects will not impose liability if the municipality did not cause the defect. In addition, a plaintiff bringing a common law claim must show that the defect was not trivial. What constitutes “notice” and “trivial” in New York, however, has been subject an evolving standard over the past century.

The trivial doctrine originated from a line of cases in the late 19th century, where New York courts implicitly established a rule whereby trip and fall victims could not establish that a defect was actionable unless it was greater than four inches. This rule was later clarified in Loughran v. City of New York, 298 N.Y. 320 (1948), where the court moved away from a numerically specific delineation in inches, but rather held that liability should turn on whether the municipality had kept its public thoroughfares in a reasonably safe condition under the particular circumstances.

In 1997, the Court of Appeals further elaborated on this standard in Trincere v. County of Suffolk, 90 N.Y. 2d 976 (1997), reiterating that “there is no rule that municipal liability, in a case involving minor defects in the pavement ‘turns upon whether the hole or depression, causing the pedestrian to fall, is four inches—or any other number of inches—in depth…’” Rather, the court reasoned, liability for a defect depends on the “peculiar facts and circumstances of each case,” and must be determined after an “examination 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.” This is the current standard that New York courts apply.

Prior Notice

Under the common law, the landowner had to have notice of the defect in order to be held accountable; the notice could be actual or constructive, depending on the nature of the defect. New York City’s enactment of the Pothole Law in 1979, however, did away with common law constructive notice, and only allowed a trip and fall victim who fell on a public sidewalk to recover if written notice of the defect had been provided to the Commissioner of Transportation at least fifteen days prior to the injury. To meet this new prior notice law, the New York Trial Lawyers Association in 1982 formed the Big Apple Pothole and Sidewalk Corp. for the purpose of providing the required notices to the City. Big Apple hired a mapping company to survey all of the streets and sidewalks in the five boroughs. Big Apple then filed the maps showing the location of defects with the City Department of Transportation. The City challenged the legality of prior notice by maps, but the courts upheld the maps as adequate written prior notice with respect to the defects actually marked on the maps. Plaintiff’s attorneys who relied upon Big Apple’s services were provided, usually within forty-eight hours, accurate information on the defect, two clear and legible maps, and any additional assistance needed, such as testifying in court.

In 2003, at Mayor Michael Bloomberg’s urging, the City Council enacted a local law that rendered Big Apple’s services moot, and the organization is now defunct. The Local Law, codified as 7-210 of the New York City Administrative Code, removed liability from the City for sidewalk trips and falls, and instead placed liability on the abutting landowners. Two exceptions apply: the City remained liable if the City itself is the landowner, or if the abutting real property is a one-to-three family home which is in whole or in part occupied by the owner and is used exclusively for residential purposes. The prior notice requirement still applies where the City is liable for the sidewalk. But without Big Apple’s services, a plaintiff who tripped on the sidewalk adjacent to City property must now prove that the DOT received written notice of the defect at least fifteen days prior to the accident. The DOT is required to keep a log of past complaints. If the defect at issue was recorded in the past, the prior written notice requirement is satisfied.

Private landowners are not required to have prior written notice in order to be held liable for sidewalk defects; actual or constructive notice suffices. The statutorily imposed duty on landowners to maintain abutting sidewalks in a reasonably safe condition supersedes the common law, and now subjects landowners to tort liability for resulting injuries. The usual standard applies for constructive notice: a defect must have existed for a sufficient period of time that the landowner should have known of its existence. The defect may not be actionable if it is trivial. In addition, the open and obvious doctrine may also be relevant. While an open and obvious condition may not preclude a finding of liability against a landowner for the failure to maintain property in a reasonably safe condition, it may raise the issue of the comparative fault of the plaintiff.

Trivial Defects

The NY Court of Appeals on October 20, 2015 decided a trilogy of slip and fall cases in Hutchinson v. Sheridan Hill House, 19 N.Y.S. 802 (2015), in which the court again declined to apply a bright-line test for determining what is trivial. The court retained the totality of the circumstances test advanced in Trincere. While the three cases discussed in Hutchinson all involved private defendants, the decision is equally applicable to public owners of sidewalks, parks and roadways.

The first plaintiff, Leonard Hutchinson, “caught” his right foot on a metal object protruding from a sidewalk while walking in the Bronx. Hutchinson testified that the metal object was “screwed in the sidewalk” and gave its rough dimensions. The sidewalk where the defect was located abutted a building owned by Sheridan Hill House Corp., which was responsible for maintaining the sidewalk in a reasonably safe condition. Sheridan’s employee measured the metal object and testified that it was “cylindrical in shape, projected ‘between one eighth of an inch . . . and one quarter of an inch’ above the sidewalk and was ‘approximately five eights of an inch in diameter.’”

The Court of Appeals held that the trip hazard was, under all the circumstances, trivial as a matter of law and affirmed the dismissal of Hutchinson’s complaint against Sheridan Hill House. The Court stated that the metal object protruded only about one quarter of an inch above the sidewalk, was in a well illuminated location in the middle of the sidewalk, was not hidden and was easily seen, was not jagged and the surrounding area was not uneven. The court further explained that “the test established by case law is not whether a defect was capable of catching a pedestrian’s shoe . . . [but rather] whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances.”

In the second case in the trilogy, plaintiff Matvey Zelichenko fell down a staircase in the lobby of a Brooklyn residential building. Zelichenko’s foot caught on the tread of the second step from the bottom of the staircase when he stepped on a part of the nosing where there was a missing piece or “chip.” Zelichenko twisted his leg and fell, sustaining injuries. The defendant, 301 Oriental Boulevard, LLC moved for summary judgment on the grounds that it lacked notice, and that the defect was trivial as a matter of law. It supported its motion with an affidavit by an engineering consultant who provided photographs and testimony that the chip, which was three and a quarter inches in width and one-half inch in depth, did not present a tripping or slipping hazard. He opined that the location of the chip was forward of a person’s foot contact area, leaving “more than sufficient space behind the chip for an individual to safely plant his/her foot.”

Zelichenko, the injured party, responded with an affidavit of another engineer who, relying on an architecture professor’s study on staircase design, posited that it was necessary that “all stair tread[s] be uniform without missing sections to support a person descending a stair in order for [the] person to maintain . . . balance when negotiating the steps.” In addition, Zelichenko produced a photograph of a foot positioned next to the chip showed the toe of the shoe extending across and over the nosing in a way that did not appear to be forced or unnatural.

The Court of Appeals ruled that the defect in the stairs that caused Zelichenko to fall did not meet the trivial standard. The court held that a triable issue of fact existed because the defect was of an irregular shape on the nosing of the step where a person might step, and because Zelichenko had produced an expert affidavit explaining the necessity for step treads to be of uniform horizontal depth.

In the third case in the trilogy, plaintiff Maureen Adler fell and was injured on an interior staircase of the apartment building where she lived which was owned and managed by QPI-VIII LLC and Vantage Management Services, LLC, respectively. Adler testified that when walking down the stairs, “her right foot got caught on ‘a big clump in the middle of the stair’—a protrusion of some sort in a step tread—which had been painted over.” Adler submitted photographs of the protrusion in the step. In addition, she testified that she was very familiar with the staircase and had seen the “clump” before. She stated that the staircase was free from dirt, debris, or cracks, and was not slippery. The building owner moved for summary judgment, asserting that the defect was trivial in nature, that it had not created the defect, nor had actual or constructive notice of its existence. The building owner relied on the photographs submitted by Adler, and did not produce any measurements or other evidence of the dimension of the “clump.”

The Court of Appeals rejected the trivial defense and sent the case back for trial. The court reasoned that a defendant owner of the building had not met its initial burden of showing that the defect on which Adler tripped was, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risk it poses. The building owner, the court noted, had failed to produce evidence of the dimensions of the “clump” or to produce other evidence showing that the clump was trivial as a matter of law.

Hutchinson highlights the New York courts’ dedication to maintaining a totality of the circumstances test for what is trivial. The Court of Appeals stated that the trivial doctrine was grounded on a fundamental principle of tort law: “if a defect is so slight that no careful or prudent [person] would reasonably anticipate any danger from its existence, and yet an accident occurs that is traceable to the defect, there is no liability.” In other words, the owner would have acted reasonably in maintaining the sidewalk even with its slight defect. This fundamental principle, however, diminishes to the point of disappearing entirely when applied to the reality of the sidewalks and streets of New York City. There is hardly a section of sidewalk or roadway so perfect that it might not cause the unwary or unlucky to trip and fall. After all, Hutchinson did trip on the metal protrusion despite its tiny size, its high visibility, and the after-the-fact conclusion by the court that it was trivial.

Defective sidewalk claims against New York City were the third most frequently filed and fifth most expensive injury claim against the City. In 2014, 2,057 sidewalk claims were filed against the City, a 24 percent increase from the 2,038 claims filed in 2013. In 2014, the City settled cases for a total of $34 million. This was, however, a seven percent decrease from the $36.7 million paid out in 2013.

The Court of Appeals may have left the door wide open for plaintiffs, but it also provided guidance for the lower courts that will allow defendants to argue that, under their specific circumstances, the rule on triviality should prevail. The First Department in one post-Hutchinson decision upheld a trivial ruling and affirmed the dismissal of a trip and fall case. As in Hutchinson, the sidewalk crack was just one quarter inch deep, was openly visible, and located in a well-lighted area. Garcia v. 549 Inwood Associates, LLC, 25 N.Y.S.3d 182 (1st Dep’t 2016).

Without a bright-line test, unmeritorious claims are encouraged and sometimes elicit an unwarranted settlement simply to avoid litigation costs. The Court of Appeals has, however, decided that the better policy is to accept a risk of an occasional windfall rather than adopt a rule that would arbitrarily eliminate cases that might be meritorious.

Meggin Bednarczyk ’17 & Annette Cordasco ’17 are students at New York Law School.

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