A woman summoned a property owner to recover damages for the personal injury she allegedly sustained as the result of an accident on the sidewalk in front of the premises leased by the defendant, and subleased by an auto service station. The property owner made a request to dismiss the complaint, alleging that the woman is unable to identify the cause of her fall and there is no notice of any defect and that dismissing the complaint is but reasonable.
Sources revealed that the Defendant property owner submitted the testimony of the woman plaintiff in which she testified that she fell on a raised portion of the sidewalk. The property owner alleges that woman does not know how she tripped, is unable to give any specifications as to the defect, never looked at the sidewalk to see how far it was raised, and failed to take measurements of the alleged differential. The property owner contends that plaintiff is not able to identify any defect which caused her accident, and any differential in the sidewalk is trivial and further claims that a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip. The property owner established its right to judgment by demonstrating that, under the circumstances, the 3/4 of an inch difference in the height elevation between the edge of the concrete slab which had caused the plaintiff to fall and the adjacent concrete slab was too trivial to be unlawful. The Plaintiff is unable to support any argument that the sidewalk in question is greater than 3/4 of an inch and this is not a trivial defect.
The request to dismiss a complaint should be granted when there is no doubt as to the absence of issues capable of trial. The function of the court on the instant motion is issue finding and not issue determination. The one who requests for complaint dismissal must tender admissible proof eliminating any material issues of fact from the case. If the person requesting the complaint dismissal succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues by producing admissible proof in support of his position.
Moreover, it is well established that to impose liability in a trip and fall perspective for injuries resulting from an allegedly defective condition, a plaintiff must demonstrate that defendant either created the condition that caused the accident, or had actual or constructive notice of it. When there is no indication in the record that the property owner created the alleged dangerous condition or had actual notice of it, the plaintiff must proceed on the theory of constructive notice, that a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it. Further, when the defendant seeks to dismiss the complaint based upon lack of notice, the defendant is required to make a legitimate presumption showing affirmatively establishing the absence of notice as a matter of law.
From the outset, the Court rejects the property owner’s attempt to differentiate between the application of request to dismiss the complaint and the companion action on the basis that the auto service station failed to demonstrate that the matter in question was trivial by alleging that it seeks the complaint be dismiss in the instant case on the basis that the plaintiff woman cannot identify any defective condition indicating cause related to her action. The law of the case doctrine is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned. Indeed, it is fundamental that one Judge may not review or overrule an order of another Judge of coordinate jurisdiction, and the decision of the Judge who first rules in a case binds all courts of coordinate jurisdiction as the law of the case, regardless of whether a formal order was entered.
The party requesting the motion has not submitted any evidence of the measurement where the woman fell. Furthermore, the picture submitted by woman in opposition to the motion shows an uneven concrete level on at least two sides.
Records show that the Court finds that that there are issues of fact to be determined with respect to whether the defect upon which the woman tripped is trivial. For the sake of argument, even if the law of the case doctrine is inapplicable to the instant application for request of complaint dismissal, the property owner has failed, in the first instance, to demonstrate a legitimate right to request to dismiss the complaint by eliminating issues capable of trial from the instant action.
Only the existence of a bona fide issue raised by admissible facts and not one based on conclusive or irrelevant allegations will be sufficient to defeat the request of complaint dismissal. Essential in the court’s consideration of a motion for complaint dismissal is the indispensible determination that there are no issues of fact.
Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury. However, a property owner may not be held liable for trivial defects. Of course, in some instances, the trivial nature of the defect may loom larger than another element. Not every injury allegedly caused by an elevated brick or slab need be submitted to a jury. However, a mechanistic disposition or purely physical procedure of the case based exclusively on the dimension of the sidewalk defect is unacceptable. In determining whether a defect is trivial, a court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injuries.
In the case herein, other than assumption and supposition, the record is lacking of any evidence which would remotely demonstrate that the alleged defect is trivial, and therefore, not actionable. Indeed, the property owner points to the fact that the woman failed to take measurements of the differential found on the subject sidewalk, nevertheless, in seeking to eliminate all issues capable of trial, the property owner has failed to set forth the width, depth, elevation, irregularity and appearance of the defect, which the Court considered in finding a non-actionable defect in the case. Furthermore, even if property owner request to dismiss the complaint on the basis that the woman cannot identify any defect which caused her fall, which the Court has rejected, it still has failed to submit evidence which would eliminate issues capable of trial, as the woman clearly identified the alleged defect in a photograph and indicated at her testimony in the companion action that she fell as a result of the sidewalk being raised and not straight.
Taking onto account all the factors stated, the request of the property owner to dismiss the complaint was denied as there are issues of fact to be determined.
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