Posted On: April 15, 2012 by Stephen Bilkis

On April 27, 2005, a man was going to work

On April 27, 2005, a man was going to work. He came down the P5 stairway on 161st Street and Amsterdam Avenue to take the “C” train at the subway station there. It had just started to rain outside but the stairway was dry. The man came down the middle of the stairs and he did not hold on to the handrails as he went down. On the last step of the stairway, the sole of his right sneaker got caught in a crack on an uneven portion of the concrete step and he tripped and fell. He twisted his right knee and landed on it. He tore the tendon on his right knee cap for which reason he had to undergo reconstructive surgery.

He filed a damage suit against the New York City Transit Authority who operates the subway station. During his deposition which was taken a year after the incident, the plaintiff clearly recited that he had tripped on a small crack on the middle portion of the concrete step. He said that the crack was a small but deep deformity on the step. He provided a photograph of the step on the stairway where the trip and fall occurred. He encircled the middle portion of the picture of the last concrete step where a small crack was visible. He also stated that he had regularly taken the subway to work at that very station and had not noticed the crack on the step before.

An engineer appeared as an expert witness for the injured man who said that the last concrete step had been worn down and was slippery. There was a depression on the middle of the step where millions of feet had smoothed down the concrete. The step was fixed to make the bottommost step even. Concrete was applied to the step but the layer of concrete that was applied did not adhere well to the bottom step leaving a small but visible crack. There was a slight unevenness on the step where it was possible that a shoe might get caught and might have caused the man’s trip and fall.

After the deposition of the man and the engineer, the New York City Transit Authority moved for a summary judgment on the ground that the crack or defect on the step of the stairway was too trivial for the action for damages to succeed.

But the trial court denied the motion of NYCTA for summary judgment. This order denying the motion for summary judgment of the NYCTA is appealed here before the Supreme Court. The only issue is whether or not the trial court erred in denying the motion for summary judgment.
The Supreme Court upheld the order of the trial court when it denied the motion for summary judgment filed by the NYCTA.

The Supreme Court held that while scrutinizing photographs is one way to determine whether the defect complained of is trivial, it is not the only way to determine that fact. The NYCTA must support its motion with an affidavit stating the facts it relies upon for the summary judgment and it must attach to that affidavit such evidence that proves that there are no genuine issues of fact that can be tried.

Looking at the photograph which represents the step on which the man tripped and fell, the Supreme Court found that the photograph was of too poor quality for the Court to determine whether the defect is trivial.

There is no set rule as to the dimension or minimum height or depth of a crack to be actionable. The court must examine all the facts and circumstances presented to determine if the crack was trivial. Both the engineer and the injured man stated under oath that the photographs were accurate depictions of the state and condition of the step when the trip and fall took place.

It is clear here that the issue of whether or not the crack was trivial or deep or if it was really the cause of the injured man’s trip and fall are all issues of fact which have to be tried as the judge cannot, by merely looking at the written testimonial admissions of the deposition and the photograph if the crack was too small to have caused the injury.

The motion for summary judgment by NYCTA is denied.

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