February 2016 Trivial Defect Update
The Court of Appeals recently gave personal injury practitioners some more certainty on a matter of uncertainties. Please excuse the convoluted introduction but it is apt as the Court’s ruling in Hutchinson v. Sheridan Hill House Corporation, 26 N.Y.3d 66, 19 N.Y.S.3d 802 (2015) has given much needed clarity to the so-called “trivial defect” doctrine.
As many attorneys know, in the vast majority of premises liability claims (especially those falling under the trip and fall category) the property owner will raise the “trivial defect” defense. The basis of the defense is that while the property at issue may be in, or have on it, a defective condition that the condition at issue is so trivial that is non-actionable. Over the years and across the four Departments there were many reported cases where summary judgment was granted or denied on the grounds that a defect was, or was not, trivial as a matter of law. More to the point, those decisions seemed to conflict with each other, and sometimes conflicted within the same Department, about what constitutes triviality.
While the law has always provided a Judge the option to make a trivial defect finding as a matter of law and remove the issue from the jury, the reasons given why defects were deemed trivial had no real rhyme or reason. Some decisions simply focused on the location of a defect, some simply focused on the size of the defect, while some decisions went deeper in their analysis and considered the defect in conjunction with all the facts surrounding the injury causing incident. Unfortunately, there eventually arose a school of thought that there had become a per se rule that a defect had to be a certain size or in a certain place to be actionable. Many decisions coined the phrase that they were applying the minimal dimension test.
The Hutchinson ruling consolidated three lower court decisions where the defects were found trivial and analyzed the methods used by the court to assess triviality. The COA’s decision affirmed one finding and reversed the other two based on the facts of each case. More importantly, the Court pronounced that there is no minimal dimension test in New York and every defect alleged to be trivial must be examined in conjunction with all the other factors of the incident. To illustrate the Court’s findings, while a one inch high elevation difference in a lighted traveled walkway in a well-lit area could by trivial, that same one inch difference in an area of poor lighting or in an area where a pedestrian’s focus is distracted (crosswalk, parking lot, etc.) may not be.
While cynics might say the decision is no great step forward in protecting our trip and fall clients, there are many of us for a happy that we have a ruling from our highest court saying that trial court judges can no longer just take the easy way out and declare that a defect is just too small. They are now going to have to take the time to analyze all the factors that might go into making something small still be dangerous.