Posted On: April 1, 2012 by Stephen Bilkis

A New York personal injury lawyer reported a case involving a trip and fall

A lawyer reported a case involving a trip and fall that was contested by the owner of the premises where the accident occurred. The owner had asked the trial court to dismiss the case because of the minor nature of the alleged defect that allegedly caused an injury to a dog walker. According to the injured party, or plaintiff, she had been out walking her dog in the morning hours on the sidewalk in front of an apartment complex when her dog suddenly pulled her into a hole on the sidewalk, which she described as shoe print sized.

The woman’s injuries consisted of a left foot ligament sprain, a broken bone in her left foot, an ankle sprain, and the development of RSD, which is permanent. She claimed the injury has made her a surgical candidate. She did not suffer a head injury or brain injury.

In her complaint, the woman alleged the building owner, who is responsible for the sidewalk in front of the complex, failed to adequately maintain the sidewalk, that he had had sufficient notice of the defect or hole in the sidewalk, and that he failed to repair it.

The building owner, however, contended that the defect was so trivial or minor that the case should be dismissed. Photographs of the defect were presented to the court, which the property owner described as three inches long, two inches wide, and less than one inch deep. He also testified that he had never seen the hole before the accident.

The plaintiff described the hole as about two inches deep. She said that she might have seen the hole before, but did not see it on the morning of the accident until her dog dragged her into it. Neither one of the parties actually measured the depth of the hole.

In a trip and fall case, the owners of property have a duty to people who lawfully enter onto it, such as the woman walking her dog, to keep their property free of defects if they had sufficient notice of it, and if it is considered to be a nuisance or presents a risk of unreasonable harm. A property owner, however, is not liable for any injuries if the defect is minor or trivial, For instance, if someone could merely trip or stub their toe on the defect, it might be considered too minor for the owner to be liable for any injuries, including brain injuries or wrongful death.

In deciding whether a defect is serious enough so that a trip and fall personal injury case can proceed to trial, the court will look at the “width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstance of the injury.” The severity of the injury is not considered a factor.

The court looked at the actions of the injured party, who did not step into the hole but was dragged into it by her dog. It also considered the photographs as reliable evidence, since the injured party had testified previously that they accurately depicted the defect. In the trial court’s judgment, it found the woman’s contention that the hole was about two inches deep as “incredible as a matter of law,” and that the hole was, in its view, less than one inch deep. The judge also found that the injured woman could not hold the property owner liable merely because her dog had dragged her and caused her to fall.

The court felt that the defect was too trivial and dismissed the injured woman’s case, finding that for a trip and fall case to be able to go to trial, it must be more than just a mere nuisance.
Steven Bilkis & Associates with its New York Personal Injury Lawyers, have the knowledge and experience to guide you through any injury circumstance caused by the negligence of another. Without a competent New York Trip and Fall Attorney, you could suffer a loss of some or all of your rights, and receive less than the full value of your claim.
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