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The Pursuit of the Trivial – Is This How the New York Court of Appeals Has Been Spending Its Time? Well, Yes (But With a Purpose)

March 1, 2016

By Robert A. Faller, Esq.*

Key Points:

  • A trivial defect in a walking surface is generally not actionable.
  • Since facts and circumstances dictate the outcome, a defendant must develop the record.
  • “In sum, there are no shortcuts to summary judgment.”


An issue of consistent significance in trip and fall cases involving walking surfaces is whether the mechanism of the fall—a hole, a protrusion, an uneven surface—constitutes a defect so trivial as to render the claim not actionable. The Court of Appeals, New York’s highest court, recently reaffirmed that there would be no bright-line test for this finding, however tempting it might be to adopt a clear-cut rule. This is not to say, however, that there is no pathway to a fair degree of predictability of result. It becomes a matter of thorough investigation and discovery.

Hutchinson v. Sheridan Hill House Corp., 41 N.E.3d 766 (N.Y. 2015) comprises three separate cases involving falls on a sidewalk or stairway. In each case, the issue was whether the intermediate appellate court (the Appellate Division) correctly found that the defendant was entitled to summary judgment because the defect was too trivial to create a valid cause of action. The Court of Appeals affirmed one finding and reversed the other two. The court’s focus was not on measurements (although that was one factor), rather, it was on overall circumstances.

The plaintiff in the first case tripped on a sidewalk when his foot caught, allegedly due to a screw or the like that was protruding from the sidewalk, which was argued to have been present since the sidewalk was replaced two years before. A defense attorney visited the site 20 months after the accident, took photographs, and measured the protrusion as between one eighth of an inch and one fourth of an inch above the sidewalk and five eighths of an inch in diameter. The defendant sought summary judgment on the dual grounds that it did not have actual or constructive notice of the defect and, in any event, that the defect was too trivial to be actionable. The lower court granted summary judgment, the Appellate Division affirmed in a 3-2 decision and the Court of Appeals affirmed. To illustrate the different perspectives that courts—and individual judges—bring to these cases, note that the lower court dismissed on the ground of no notice, while the Appellate Division affirmed but added the additional ground of triviality of the defect. Meanwhile, two judges dissented, believing that issues of fact existed on both grounds. The Court of Appeals then took the case.

The court first looked at Trincere v. County of Suffolk, 688 N.E.2d 489 (N.Y. 1997), in which the court held that in New York there is no per se rule regarding minimum height or depth that supports or rejects what is actionable and, therefore, a grant of summary judgment based exclusively on the dimensions of the defect cannot be supported. Rather, a court must consider all facts and circumstances presented. Against this background, the overall theme of the holding in Hutchinson, collectively and in the three individual cases, is that the more detail that a defendant (or a plaintiff) can present as to facts and circumstances to support his position, the better the chance of prevailing, often by way of summary judgment. Thus, in the first case, the Court of Appeals affirmed summary judgment in favor of the defendant. One factor was, of course, the seemingly trivial dimensions, but the court also considered that the protrusion was in a well-illuminated location, in the middle of the sidewalk, and a place where a pedestrian would not have to look only ahead, since there was an absence of crowds. The object was not hidden, its edge was not jagged and the surrounding surface was not uneven. All of this was sufficient to lead the court to conclude that the defect was trivial as a matter of law. There appears little doubt that, had the defendant not developed and argued these factors to the Court of Appeals, the result would have been different.

The second case involved a fall on an interior staircase in which there was a chip, a missing piece, near or on the outer edge of a step. The Appellate Division found the defect to be trivial because the chip was not on the walking surface, but the Court of Appeals reversed. The court found that there was evidence, including expert evidence, advanced by the plaintiff which allowed the conclusion that the walking surface extended to the edge of the step and, thus, the location of the chip. The court found this to be sufficient to create a triable issue of fact, precluding summary judgment.

The third case is the most predictable as to result in light of the emphasis that the Court of Appeals placed throughout the decision on the importance of considering all of the facts and circumstances presented by the record. This case also presented a trip and fall on an interior staircase, allegedly caused by a “clump” on one of the steps that had been there for some time and had been painted over.

In its motion for summary judgment, the defendant submitted a photograph of the “clump,” but tellingly produced no measurements, nor did the plaintiff. The Appellate Division found the defect to be trivial and granted summary judgment, but the Court of Appeals reversed. The court found the record to be “inconclusive” and stated that “[w]ithout evidence of the dimensions of the ‘clump’, it is not possible to determine whether it is the kind of physically small defect to which the trivial defect doctrine applies.”

The Court of Appeals, in its concluding paragraph in Hutchinson, emphasized that, “[i]n sum, there are no shortcuts to summary judgment.” Dimensions are not enough; inconclusive photographs are not enough; the fact that the plaintiff might have avoided the accident by placing his feet elsewhere is not enough. There simply must be more detail to the record. The means to accomplish this is through thorough investigation and discovery, including, if appropriate, the retention of experts. Injuries in trip and fall cases on sidewalks or stairways are often serious. Summary judgment is a worthwhile and achievable goal if the alleged defect is trivial. In Hutchinson, the Court of Appeals cautioned lower courts and legal practitioners that a fully developed record is the proper path to the relief of summary judgment. Those who attempt shortcuts through the investigation and discovery process will achieve disappointing results when summary judgment is sought.

*Bob, senior counsel in our Melville, New York office, can be reached at 631.227.6347 or


Defense Digest, Vol 22, No. 1, March 2016

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact

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