Does size matter in assessing whether a defect on a stairway or sidewalk is actionable? The answer is clearly that size matters, but it isn’t everything. There are two significant issues that may arise in assessing whether an action may be maintained where a tripping defect gives rise to injury. The initial issue is whether the defect is so trivial as not to constitute an actionable defect. The second consideration is whether the defendant may be charged with the requisite notice of the defect. In this column, we will address the issues raised where a defendant seeks dismissal of such an action by alleging that the defect was trivial and not actionable as a matter of law.
Historically, most notably in Loughran v. City of New York, 298 N.Y. 320 (1948) and then in Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997), the Court of Appeals established that there is no “‘minimal dimension test’—or per se rule that a defect must be a certain minimum height or depth to be actionable.”1 It did, however, recognize that certain defects, including the one actually at issue in Trincere, may be sufficiently trivial to justify dismissal as a matter of law. These decisions made it clear that although not every injury caused by a hole or elevated slab should be submitted to a jury, “a mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable.”2
