Slip, Trip and Fall Case Where Plaintiff is Seeking Damages After
Tripping on a Sidewalk*
In this slip, trip and
fall court case the plaintiff is seeking damages for personal injuries
sustained as a result of her tripping on the sidewalk of the property
next to the defendant's offices. In this case the plaintiff is Mai Lei.
The defendant is the City of New York and Coop Investors.
This is a motion by the defendants for judgment
dismissing the complaint and any cross-claims against it.
The plaintiff sustained injuries as the result of
a slip, trip and fall incident on a raised portion of the public
sidewalk adjacent to Coop's premises in Queens County on February 12,
2004.
Property owners in the City of New York are
required to repair and maintain, at their own expense, the public
sidewalks abutting their premises, pursuant to the Administrative Code
of the City of New York.
Furthermore, the Code imposes liability upon
property owners for any slip, trip and fall injuries resulting from
their failure to maintain and repair the public sidewalks abutting or
adjoining their properties, except owners of one to three-family homes
that are either wholly or partially owner-occupied and used exclusively
for residential purposes.
Coop moves for summary judgment on the grounds
that the plaintiff has failed to prove that Coop had actual or
constructive notice of the sidewalk defect and that the defect was
trivial, thus not substantial enough to trigger liability.
In order to obtain summary judgment, the movant
must make a prima facie showing that it is entitled to relief, by
tendering sufficient proof to eliminate any material issues of fact.
Coop failed to meet this burden.
Coop contends that it set forth evidence of lack
of notice by way of the testimony of its vice president, who said no
complaints about the sidewalk were received prior to the accident, that
no citations were issued to Coop with respect to the sidewalk prior to
the accident and that no repairs were conducted to the sidewalk from
1990 through 2004.
This slip, trip and fall evidence only addresses
the issue of actual notice, not constructive notice. Proof of lack of
actual notice alone is insufficient to establish Coop´s initial burden.
It was also incumbent upon Coop to establish lack of constructive
notice by showing that the sidewalk defect was not visible or apparent
for a sufficient period of time to have reasonably allowed Coop, in the
exercise of reasonable care, to remedy the defect.
Coop has failed to proffer any evidence that the
defect either did not exist, was not visible or was not apparent for a
reasonably long enough time to have permitted it to remedy the defect.
Coop also fails to establish that the defect was unsubstantial, or
trivial, as it contends.
An adjacent property owner is only required to
repair substantial defects. A substantial defect includes a trip
hazard, where the vertical grade differential between adjacent sidewalk
flags is greater than or equal to one half inch or where a sidewalk
flag contains one or more surface defects of one inch or greater in all
horizontal directions and is one half inch or more in depth.
Coop offers no evidence that the raised portion of
the sidewalk in question was less than one half inch in height. Indeed,
Coop proffers no evidence at all regarding the severity of the defect
in this slip, trip and fall case.
The Sidewalk Law does not impose absolute tort
liability upon landowners for injuries sustained on an abutting
sidewalk. In order to prove a breach of duty in most slip, trip and
fall cases, the plaintiff must show that the defendant created the
condition which caused the accident or that the defendant had actual or
constructive notice of the condition.
Coop failed to meet its prima facie burden on this
motion. The motion by Coop for judgment dismissing the complaint and
any cross-claims against it is denied.
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*This
case example is for educational purposes only. It is based on actual
events although names have been changed to protect those involved.
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