Generally, property owners may not be held liable for injuries caused by trivial defects that do not unreasonably imperil the safety of a pedestrian. In Snyder v. AFCO Avports Mgt., LLC,1 the Appellate Division, Second Department considered whether photographs alone are sufficient for a moving defendant to establish triviality, and, if they are, what they must depict to support such a finding. The court also reviewed the foundation necessary for admissibility of a human-factors expert’s opinion in support of the motion.
In Snyder, the plaintiff sustained injuries after tripping over a piece of raised sidewalk. Photographs of the area were taken the same day, and repairs to the sidewalk were made in the days following the incident before any objective measurements were taken of the misleveled slab.
The trial court granted the defendants’ motion for summary judgment dismissing the complaint, finding that the alleged defect was trivial upon review of the defendants’ submissions of photographs, deposition testimony, and an affidavit of a human-factors expert. The motion papers lacked objective evidence regarding the dimensions of the defect due to its speedy repair after the accident. The plaintiffs appealed, and the Second Department reversed.
The Second Department found that an objective measurement of a defect is not a per se requirement to establish triviality as a matter of law; however, the persuasiveness of photographs depends on the reasonable inferences drawn from them. Indistinct photographs, or photographs from which it is impossible to ascertain the extent of the height differential, do not aid a moving defendant in establishing triviality.
The appellate court reasoned that, where no objective measurement is provided, the height, depth, or other dimensions of an alleged defect ideally should be viewed near other objects of known or standard size, such as a coin, or other objects of uniform size. The photographs submitted by the defendants did not enable a reasonable inference to be made of the alleged defect’s dimensions and “did not support the Supreme Court’s conclusion of triviality as a matter of law.”2 The Second Department also found that the opinion of the defendants’ human-factors expert was inadmissible “absent an objective measurement of the height differential or at least a fairly inferable estimate of it.”3
With the Snyder decision in mind, there will inevitably be situations where objective measurements are difficult to take, are forgotten, or are impossible to obtain due to repairs. The possibility remains that a photograph allowing for a reasonable inference of dimensions of the defect could support a finding of triviality, but practitioners are advised that the better course is to submit objective measurements of an alleged defect when relying on a trivial defect defense.
If you have any questions regarding the content of this alert, please contact Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; Kaity McClaine, associate, at kmcclaine@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
1___AD3d___, 2024 NY Slip Op 04584 (2d Dep’t September 25, 2024).
2Id., at * 5.
3Id., at *5-6.