Slip & Fall Cases: "TRIVIAL DEFECTS" vs. Open & Obvious Defects | Manhattan Personal Injury Attorney



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.

Trip & Fall Cases: Unknown Cause | Brooklyn Personal Injury Attorney



Countering the “Open and Obviousand “Not Inherently Dangerous” Arguments

If the victim of a slip or trip and fall accident is unable to identify the cause of the fall, then the general rule applied by virtually all attorneys is that there is no viable case.  It is ultimately not sustainable  to attempt  to  hold another party responsible  for one’s injury if the cause, attributable to that alleged  responsible party, is only based  on speculation.

Experienced Personal Injury Attorneys, however, will not be quick to dismiss the possibility of a lawsuit based on the first hint of an “unknown cause”.  Truth be told, what may well not be evident to the layman that was injured, may be self-evident to a more experienced eye or to an expert.  A most obvious example may be the absence of a handrail which, to the average person, may not amount to an obvious defect.  Nevertheless, the absence of a handrail could well be the basis for a successful lawsuit.

The apparent absence of a cause of an accident is common in “single step” cases.  A person falls down a  single step.  The  potential defendant argues the absence of liability both  because the step  was “open and obvious” and certainly “not inherently dangerous”.    Both of  these  positions are traditional grounds  for granting defendants “summary judgment” (dismissal) of lawsuits.  The presence of “warning signs”, advising passers-by of dangerous conditions, adds  substance  to  such  defense  positions.

It is up to the Plaintiff’s team, the attorney backed by an expert, to direct the court’s attention to any existing defect – such as lack of handrails, a dangerous  slope, a riser that violates the building code, a cracked or defective lip, etc. that would resurrect  a potentially moribund lawsuit.  What the seasoned Personal Injury Attorney will do is anticipate arguments the defense will interject, and prepare the appropriate groundwork in  both  paperwork and deposition testimony, to give support  to countering those defense positions.