Opinion
Index EF008823-2018
09-19-2019
SUSAN LEMIN, Plaintiff, v. JAMES H. KIRKWOOD, Defendant.
Unpublished Opinion
Motion Date: August 28, 2019
To commence the statutory time period for appeals as of right (CPLR5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
Present: HON. CATHERINE M. BARTLETT, A.J.S.C.
CATHERINE M. BARTLETT, JUDGE
The following papers numbered 1 to 6 were read on Defendant's motion for summary judgment:
Notice of Motion - Affirmation/ Exhibits - Affidavit/ Exhibits - Memorandum ..........
1-4
Affirmation in Opposition - Expert Affidavit .......................................
4-5
Reply Affirmation / Exhibits ....................................................
6
Factual Background
This is an action to recover for personal injuries sustained by plaintiff Susan Lemin in a trip-and-fall accident that occurred on April 21, 2018 at approximately 9:30 p.m. at the home of defendant James Kirkwood. Plaintiffs Complaint asserts a cause of action for common law negligence. Defendant moves for summary judgment on the purported ground that the alleged defective condition was trivial and non-actionable as a matter of law.
Plaintiff, aged 70, and Defendant, aged 67, were in a relationship, and Plaintiff stayed at Defendant's home a couple nights a week. On April 21st, they were returning together with other family members from Defendant's birthday celebration. Plaintiff had to use the bathroom, so after Defendant pulled into the driveway, he got out of his van, opened the garage and switched an interior light on so Plaintiff could go in. Plaintiff tripped and fell at the junction between the asphalt driveway and the concrete slab of the garage.
Photographs depicting the condition show that the concrete slab was cracked; that for much of the width of the garage its leading edge was cracked, irregular and uneven; and that the edge was raised approximately an inch and one-half (1 1/2”) above the level of the asphalt driveway. Plaintiffs forensic engineering expert opined that this condition resulted in a dangerous tripping hazard. Plaintiff had never noticed the condition of the concrete slab before. She had entered the garage about 25 times previously, but only once before at night, and preferred to use the front door because Defendant kept so much equipment in the garage. It was pitch dark at the time of the accident. There was no illumination outside the garage, and the light within was dim and did not shine out to the front.
Legal Analysis
Pertinent law concerning "trivial" non-actionable defects was recently summarized by the Second Department in Craig v. Meaduwbrook Pointe Homeowner's Ass'n, Inc., 158 A.D.3d 601(2dDept.2018):
A property owner has a duty to keep the property in a "reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v. Miller, 40 N.Y.2d 233, 241.., ). Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977...).
However, property owners may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see id at 977...). There is no "minimal dimension test or per se rule" that the condition must be of a certain height or depth to be actionable (id...). In determining whether a defect is trivial as a matter of law, the court must examine all 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" (id at 978...).Id., at 602. See, Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77-78 (2015).
In Hutchinson, supra, the Court of Appeals revisited "trivial defect" jurisprudence under Trincere v. County of Suffolk, supra, and its progeny. The Court noted that "Trincere and the line of cases in which it stands establish the principle that a small difference in height or other physically insignificant defect is actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it 'unreasonably imperil[s] the safety of a pedestrian [cit.om.]." Id., 26 N.Y.3d at 78. The Court warned that "there are no shortcuts to summary judgment in a slip-and-fall case" (id, at 84), and observed that there are various pathways to establishing that a physically small defect constitutes an actionable hazard:
Liability does not "turn[] upon whether the hole or depression, causing the pedestrian to fall, ...constitutes 'a trap"' [cit.om.]. The case law provides numerous examples of factors that may render a physically small defect actionable, including a jagged edge [cit.om.]; a rough, irregular surface [cit.om.]; the presence of other defects in the vicinity [cit.om.]; poor lighting [cit.om.]; or a location - such as a parking lot, premises entrance/exit, or heavily traveled walkway - where pedestrians are naturally distracted from looking down at their feet [cit.om.].Id., at 78.
Finally, the Hutchinson Court stressed that "the trivial defect doctrine is best understood with our well-established summary judgment standards in mind." Id., at 79. The Court held that a defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing on two counts: (1) that "the defect is. under the circumstances. physically insignificant", and (2) that "the characteristics of the defect or the surrounding circumstances do not increase the risks it poses." Id. (emphasis added). "Only then does the burden shift to the plaintiff to establish an issue of fact." Id. See, Craig v. Meadowbrook Pointe Homeowner's Ass'n, Inc., supra, 158 A.D.3d at 602-603; Flanagan v. Town of Huntington, 155 A.D.3d 1000 (2d Dept. 2017) (same).
On neither count has Defendant here demonstrated prima facie entitlement to judgment as a matter of law.
First, given the nature, size and location of the defect in the garage concrete slab, Defendant has not demonstrated prima facie that "the defect [was], under the circumstances, physically insignificant." As noted above, the concrete slab was cracked; for much of the width of the garage its leading edge was cracked, irregular and uneven; and the edge - in a place where pedestrians would foreseeably pass on a regular basis - was raised approximately an inch and one-half (114") above the level of the asphalt driveway. Cf, Brurnm v. St. Paul's Evangelical Lutheran Church, 143 A.D.3d 1224, 1225-26 (3d Dept. 2016) (raised irregular edge one inch high and eighteen inches long in deteriorated, uneven sidewalk flag was not trivial defect as a matter of law).
Defendant on his motion for summary judgment proffered no expert support for his position that the defect was trivial. Plaintiff, in opposition, submitted the sworn affidavit of her forensic engineering expert, who opined that the condition of the garage concrete slab resulted in a dangerous tripping hazard. The engineering report proffered by Defendant in reply is unsworn and hence not in admissible form. It is thus without probative value and may not be considered in support of Defendant's motion. See, Accardo v. Metro-North Railroad, 103 A.D.3d 589 (1st Dept. 2013); Matter of Delgatto, 82 A.D.3d 1230, 1231 (2d Dept. 2011); Troche v. NYCTA, 16 A.D.3d 407 (2d Dept. 2005); Pagano v. Kingsbury, 182 A.D.2d 268, 270-271 (2d Dept. 1992).
Second, Defendant has not demonstrated prima facie that "the characteristics of the defect or the surrounding circumstances do not increase the risks it poses." As the Court of Appeals observed in Hutchinson, among the factors that could render a physically small defect actionable are several that are potentially applicable in this case: a jagged edge; a rough, irregular surface; poor lighting; and a location, such as a premises entrance/exit, where pedestrians are naturally distracted from looking down at their feet. See, Hutchinson v. Sheridan Hill House Corp., supra, 26 N.Y.3d at 78. Cf., Kam Lin Chee v. DiPaolo, 138 A.D.3d 780, 782-783 (2d Dept. 2016) (rise of slightly more than one inch in a portion of the sidewalk was not actionable where the situs was well illuminated, plaintiffs view was unobstructed and she had traversed the sidewalk on numerous prior occasions without incident).
Defendant having failed to establish prima facie that the defect was under the circumstances physically insignificant, or that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed, he failed to meet his initial burden in moving for summary judgment. Consequently, the burden did not shift to Plaintiff to establish an issue of fact, and Defendant's motion must be denied regardless of the sufficiency of the opposing papers. See, Hutchinson v. Sheridan Hill House Corp., supra; Craig v. Meadowbrook Pointe Homeowner's Ass 'n, Inc., supra", Flanagan v. Town of Huntington, supra.
It is therefore
ORDERED, that Defendant's motion for summary judgment is denied, The foregoing constitutes the decision and order of the Court.