Adam Wolk · Jessica Brylo · Dan Ambrose
Trip and Fall with ‘Trivial Defect’ - $100k offer pre trial; $1.2 million settlement after
June 14, 2024 5:30 PM||TLU n Demand
This was a trip and fall liability trial involving a raised sidewalk flag located in front of a commercial business, Gomez & Gomez accounting, a tenant in a six-story mixed residential commercial property, owned and managed by Westburry Flatts LLC. The defendants were the tenant and property owner, and the lease was not clear about who was responsible for maintaining the sidewalk. The subject defect was an approximate 1.25-inch vertical grade sidewalk flag differential that was present in some form since 2011 as evidenced by google images. Leading up to the trial the offer was $100,000 combined. After liability, the matter resolved for 1.25 million dollars.
The primary issues faced in this trial were:
- Establishing that the defect was not trivial
- Ensuring that the jury put fault on both defendants
- Minimizing Plaintiff’s comparative negligence
The issues were addressed generally by the following arguments/evidence
- Highlighting that the subject defect is not trivial as a matter of law based on the NY Administrative code which holds vertical grade greater than or equal to one half an inch qualifies as a hazard and substantial defect. Supporting that code and its compliance by highlighting to the jury that small defects that are not trivial but are close to trivial are the most dangerous, and the ones that need repair the most because they are a hidden tripping hazard.
- The lease was not clear as to who was responsible for structural repair/upkeep of the sidewalk; while it appeared the tenant was responsible for snow/ice/debris, structural repairs needed to be approved by the owner. As such, it was argued that liability should be apportioned between the tenant and property owner.
- Minimizing the plaintiff’s comparative negligence was accomplished by highlighting the egregious nature of the defendants’ actions as well as the negligence of both defendants. Using a theme of “Not my Problem,” plaintiff used the defendants’ respective positions that it was the other defendant’s responsibility to fix the defect to turn the jury against them. That “not my problem” attitude was highlighted with respect to failure of either defendant to keep good records, and from that a “no record keeping” theme was used to further argue to the jury that the defendants were negligent
This matter is typical in the sense that it involves a small yet substantial defect for which there is some statutory duty to repair and maintain. It is unique in that both defendants acknowledge the presence of the defect but argue that it was another party’s responsibility to fix it, and that even if it was their duty, the fact that the defect has been present for so long without causing issues and without being repaired makes such a defect insignificant and/or trivial.
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