SLIP AND FALL CASES: “TRIVIAL DEFECTS” vs. “OPEN AND OBVIOUS DEFECTS“
It would seem that the Defendants in slip and fall cases have options open to them that can make Plaintiffs’ heads spin. A claim that a defect that was the alleged cause of a “slip and fall” injury was too trivial to actually constitute a nuisance or hazard is a recognized valid defense to a personal injury action. Alternatively, it is a recognized defense to claim that a condition that was the cause of the “slip and fall” injury was “open and obvious” and, as such, was not the responsibility of the property owner. Seems they may have you coming and going.
In situations such as these, the value of an attorney’s experience in facing these issues cannot be over emphasized. Both of these issues usually arise in motions made to the court for “summary judgement” and it will be the court’s discretion that determines the fate of your case. There is voluminous case law relating to each of these areas and the outcome is often based upon a battle royale between and among the opposing attorneys.
With respect to the “trivial defect” defense, demonstrating through evidence: pictures, prior accidents, description by the plaintiff as to how the defect caused the accident, etc. can, and often does, overcome this defense.
The “open and obvious” defense is based on the supposition that the obviousness of the danger itself is sufficient warning to any potential victim.
This defense has the possibility of counter arguments: that the landowner should have anticipated the danger to others even though it was open and dangerous or where the landowner had reason to believe the potential victim would be somehow distracted from noticing the defect. Recent New York case law seems to make the issue of “foreseeability” by the landowner the primary determinant–the more the accident was foreseeable, the more likely the landowner will be held responsible, regardless of the defect’s obvious nature.