SUMMARY JUDGMENT GRANTED IN FAVOR OF NATIONAL RETAILER – TRIVIAL DEFECT THEORY

In a recent decision by the Honorable Arthur G. Pitts, Justice of the Supreme Court for Suffolk County, plaintiff’s claim of negligence against 7-Eleven was dismissed under the “trivial defect theory.”  Plaintiff’s law suit alleged that a defect existed at the subject 7-Eleven store in the form of a “dip” in the pavement.  Plaintiff claimed that upon exiting her vehicle, she took three steps and was caused to trip and fall due to the alleged defective dip.

Plaintiff testified that she lost her footing after exiting her vehicle while walking towards the subject 7-Eleven as a result; her foot struck a dip in the pavement.  However, during her deposition testimony plaintiff was presented with a photograph of the alleged defect and testified that the same fairly and accurately depicted the condition of the pavement on the day of her fall. After the Court reviewed the photograph taken by the defense, the Honorable Judge Pitts determined that 7-Eleven made their prima facie case in favor of summary judgment while plaintiff failed to submit any evidence in opposition to create a triable issue of fact.  The Court went on to state that the alleged defect was trivial as a matter of law, and a defect as trivial as the one alleged by plaintiff is “too trivial to be actionable, and thus presents no issue of fact.”  Finally, the Court held that not every injury allegedly caused by an elevated brick or slab may be submitted to a jury.

The Suffolk County Supreme Court recognized that not all defects are dangerous, thus actionable, as individuals entering a landowners premise must use their own senses in a reasonable fashion to prevent a trip and fall accident.  While a landowner does have a duty to keep its premises in a reasonably safe condition, the mere existence of a defect does not automatically provide for notice, negligence, or liability on behalf of the defendant landowner.  The summary judgment motion was successfully briefed and argued by Bradley Bettridge of Sobel Pevzner, LLC.

Many plaintiffs regularly filed suit alleging that a de minimus defect is the cause of their injury and that the landowner must be held liable regardless of the extent of said defect. Judge Pitts’ decision reaffirms that under the proper circumstances, summary judgment can be granted under the “trivial defect theory.”   The decision further highlights the importance of an aggressive defense, site inspections by counsel and properly preparing a case for summary judgment at the outset of litigation.

Bradley Bettridge is an Associate

At Sobel Pevzner, LLC.