Week of July 16-22

This week, in Chojnacki v. Old Westbury Gardens, Inc., ___AD3d___, 2017 NY Slip Op 05706, *1-2 [2017].), the Appellate Division, Second Department addressed three potential grounds for summary judgment in a defendant’s favor regarding a trip and fall on a structural defect on a sidewalk or walkway. 

First, a defendant can argue that the defect was trivial as a matter of law with evidence that “the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risk it poses.” In Chojnacki, defendant failed to meet its burden because it did not offer evidence showing that the dimensions of the brick were trivial. The lesson here is that you need good photographs showing a very minor defect with small dimensions, ideally with precise measurements, in order to establish this defense.

Second, a defendant can offer evidence that the defect is “open and obvious” as a matter of law. This defense generally only works with large defects such as single step risers or wheel stops. As the Court explained, “[t]he defendant also failed to make a prima facie showing that the alleged raised brick was an open and obvious condition that is inherent to the nature of the property and could be reasonably anticipated by those using it.” It does not generally work with walkway cracks or raised lips, because in such cases the court is more likely to find a question of fact for the jury regarding the parties’ comparative fault percentages. Third, the defendant can rule out that it had actual or constructive notice of the defect, which is always difficult if the defect is structural, unless your insured can offer you good evidence on that point.

Chojnacki highlights the importance of working with the insured early in the litigation in order to get good photographs of the claimed defect, before any changes or repairs are made. It also shows the importance of retaining a good expert engineer who can perform a thorough analysis of the alleged defect. Precise measurements can only help, especially if the defect really is “trivial” in terms of its depth, width, dimensions and “regular” or “irregular” appearance.