Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <a href="https://www.wcmlaw.com/wp-content/uploads/2022/01/Dingman-v.-Linchris-Hotel-Corp.-1.pdf"><em>Dingman v. Linchris Hotel Corp.</em></a>, the Second Department recently addressed whether the condition that caused a fall down accident was too “trivial” for the defendant to be held liable. Plaintiff in that case alleged that she sustained personal injuries when she fell in the lobby of a hotel due to a quarter inch difference in elevation between tile and subfloor. The general contractor who was installing tiles at the time of the accident moved for summary judgment on the basis that the condition was too “trivial” to create liability. The Supreme Court denied the motion and the general contractor appealed.</p>
<p style="text-align: justify;">In evaluating the trivial defect defense, the Second Department stated that: “[A] defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact." The court went on to state that they will consider the "width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury." (Citations omitted). Based upon this standard, the court reversed the decision of the trial court and granted summary judgment, holding that the general contractor, through testimony and photographs, established that the height differential was “physically insignificant” and therefore had no liability.</p>
<p style="text-align: justify;">The <em>Dingman</em> decision serves as a reminder that not all trip and fall accidents result in liability exposure and that insurers and defense counsel should evaluate the potential for a trivial defect defense where an elevation difference is not significant.</p>
<p style="text-align: justify;">Thank you to Corey Morgenstern for his contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>