Opinion
25347/04.
Decided June 5, 2008.
Burns Harris, Esqs., by: Seth A. Harris, Esq., of Counsel, for Plaintiff.
By: Joseph Santo, Esq., for Defendants.
The instant negligence case involves a defective driveway sidewalk located at 530 West 236th Street in Bronx County. The premises are privately owned. Tried before the Court, the jury returned a verdict in Plaintiff's favor for $350,000 for past pain and suffering and $350,000 for future pain and suffering, for a total award, including medical expenses, of $770,257.00. The jury found that Plaintiff had no contributory negligence.
Defendants now move for an order, pursuant to CPLR 4404(a), seeking to:
(1) set the verdict aside and grant Defendants judgment as matter of law,
(2) order a new trial because the verdict is against the weight of the evidence,
(3) require a new trial on the issue of comparative fault,
(4) reduce the past and future pain and suffering awards as excessive, and
(5) continue to stay the entry of the judgement.
Plaintiff opposes all aspects of Defendants' post trial relief. She maintains that Defendants did not meet the heavy burden needed to set aside the verdict as against the weight of the credible evidence for failure to show that the verdict could not have been reached on any fair interpretation of the evidence (see, Frank v. Fisher, 142 AD2d 665 [2nd Dept. 1988]). Surely, the Court's discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution. Absent indications that substantial justice was not done, a successful litigant is entitled to the benefits of a favorable verdict (see, Nicastro v. Park, 113 AD2d 129 [2nd Dept. 1985]).
Likewise, Plaintiff agrees with the Court that the pavement defect issue of "triviality" deserved to be decided by the jury (see, Glickman v. New York City, 297 AD2d 220 [1st Dept. 2002]). Further, Plaintiff supports the jury's finding on comparative negligence and damages as fair and reasonable.
In reply, Defendants attack Plaintiff's testimony as unbelievable and restates that the defect was trivial as a matter of law (see, Trincere v. Suffolk County, 90 NY2d 976). Concerning comparative fault, Defendants argue that Plaintiff failed to address the case law which permits a jury to ignore future pain and suffering (compare, Conley v. New York City, 40 AD3d 1024 [2nd Dept. 2007] with Adames v. Awad , 47 AD3d 737 [2nd Dept. 2008]).
Legal DiscussionDefendants base their motion to set aside the damages verdict and award judgment as a matter of law upon the grounds (1) Plaintiff's testimony was incredible as a matter of law and (2) the alleged defect in the sidewalk was too trivial to be actionable.
As to the Testimony
Defendants maintain that the instant liability verdict rests entirely upon Plaintiff's testimony. According to Defendants, a verdict predicated upon testimony which was manifestly untrue to common experience can be afforded no evidentiary value (see, Kirchgaessner v. Hernandez , 40 AD3d 437 [1st Dept. 2007]). Defendants maintain that Plaintiff's testimony was inconsistent and therefore incredible and cannot support the instant verdict. Review of the testimony shows that Defendants failed their burden of proof in this regard. Plaintiff's testimony was neither inconsistent nor incredible as a matter of law (see generally, Abrams v. Gerold, 37 AD2d 391 [1st Dept. 1991]).
As to the Issue of Triviality
The second ground Defendants cite as the basis for setting aside the damages verdict is the claim that the pavement defect was so "trivial" that there can be no justification for accountability for Plaintiff's injuries. This branch of the Defendants' motion was previously denied at trial; it will now be considered as a motion to reconsider that prior ruling.
Historical
In the context of injuries involving pavement, the issue of triviality has given rise to considerable discussion and wide interpretation before our courts for more than one hundred years (see, Dickerman v. Weeks, 108 AD 257 [1st Dept. 1905]). In Dickerman, the First Department found that an elevation of five to six inches on a public sidewalk cannot be held, as a matter of law, to be a trivial defect so as to relieve responsibility for the condition.
Five years earlier, the First Department had found a city sidewalk depression twelve by six inches in area and from two to three inches in depth trivial and not such a defect as to render a city liable to one who falls in broad daylight by stubbing against the depression (see, Getzoff v. New York, 51 AD 450 [1st Dept. 1900]).
TheSecond Department, in 1907, held that where a plaintiff suffered a fall and injury by reason of her toe catching in a hole under a flagstone which projected about two inches above the adjoining stone, the question of whether defendant's negligence was not trivial must be submitted to the jury (see, Moroney v. New York, 117 AD 843 [1st Dept. 1907], aff'd, 190 NY 560). Three years later, the Third Department determined that a water box that projected three-quarters of an inch above the surface of a walkway was too trivial to sustain a judgment against the municipality (see, Powers v. Mechanicville, 140 AD 835 [3rd Dept. 1910]).
Clearly, the duty of maintaining a sidewalk in a reasonably safe condition rests on its owner. This duty requires vigilance and encompasses diligence that the sidewalk remains in a condition safe for those who traverse it.
As early as 1895, the Court of Appeals found that where a sidewalk defect was so slight that no one could reasonably anticipate danger, but could guard against it by the exercise of care and foresight, the question of the defendant's responsibility is one of law (see, Beltz v. Yonkers, 148 NY 67). In accord, see Hamilton v. Buffalo, 173 NY 72 (1903). In Butler v. Village of Oxford, 186 NY 444 (1906), it found "it would be altogether too burdensome a rule if we should allow. . . . defendant to be held liable for so insignificant a defect as is here complained of."]) (see also, Gastel v. City of New York, 194 NY 15[" damnum absque injuria"]). Over the years, the High Court has consistently rejected any rule that liability turned upon whether a hole or depression causing a pedestrian to fall was any number of inches in depth (see, Trincere v. County of Suffolk, 90 NY2d 976, Loughran v. New York, 298 NY 320, Wilson v. Jaybro Realty Development Co., 289 NY 410. Cf. Keener v. Tilton, 283 NY 454).
When considering triviality involving a non-municipal defendant, the First Department found jury resolution proper under certain factual circumstances (see generally, Gibson v. Jaystone Drug Co., 267 AD 201[1st Dept. 1943] [iron vault covers raised one and half inches], Rodriguez v. Parkchester South Condominium, Inc., 178 AD2d 231 [1st Dept. 1991] [stones where repairs on three separate occasions within months of a fall]). More recently, our Department has applied a "trap or snare" test in evaluating whether triviality bars a finding of negligence in private sidewalk incidents (see, Morales v. Riverbay Corp., 226 AD2d 271 [1st Dept. 1996]). In Morales, the court held that the owner corporation was not liable for a pedestrian's injuries allegedly sustained when she tripped on a sidewalk with a one inch differential between two slabs.
Trincere The Court of Appeals, recently addressing the issue anew, again set down guidance for deciding sidewalk injury cases: there is no minimal dimension test or per se rule requiring that a defect must be of a certain minimum height or depth in order to be actionable (see, Trincere v. County of Suffolk, supra .). However, the Court recognized that there were circumstances where triviality could exist as a matter of law. Those circumstances are not present in this case.
In Trincere, a pedestrian fell after tripping over a half inch raise of slab outside a county office building. In her negligence action, the Supreme Court, in an unreported decision, entered judgment, as matter of law, for the county at the close of evidence; the pedestrian appealed. The Appellate Division affirmed on the basis that the defect was too trivial to be dangerous and did not justify finding the county liable (see, Trincere v. County of Suffolk, 232 AD2d 400 [2nd Dept. 1996]). On appeal, the Court of Appeals held that the defect in the sidewalk was not actionable, concluding that the trial court correctly found that no issue of fact was presented and holding that "in some instances, the trivial nature of [a] defect may loom larger than another element. Not every injury allegedly caused by an elevated brick or slab need be submitted to a jury"(see, Trincere v County of Suffolk, supra ., at 977, citing Loughran, supra ., at 321-322).
Trincere restated that no rule exists that liability, where minor pavement defects are involved, turns upon whether the defect causing the pedestrian to fall was any number of inches in depth (see, Lotito v. New York, 278 AD 581 [2nd Dept. 1951]] [reversable error to charge no liability unless hole at least four inches deep]). Instead, whether a dangerous or defective condition exists on the property of another so as to create liability "depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (see, Trincere v. County of Suffolk, supra ., at 977, quoting, Guerrieri v. Summa, 193 AD2d 647 [2nd Dept. 1993]).
Trincere teaches that a mechanistic disposition of cases, based exclusively on dimensions of a sidewalk defect, is unacceptable. Instead, nisi prius courts are to examine the facts extant. In determining whether a defect is trivial, a court must examine the surrounding circumstances, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury" before deciding the issue of triviality (see, Trincere, supra ., at 977). Trial courts are to apply such standards to determine whether a hazardous condition exists on a landowner's property so as to constitute an actionable dangerous condition to create liability. Negligence is referable to the peculiar facts and circumstances presented (see also, Guerrieri v. Summa, supra .; Michalski v. Home Depot, Inc., 225 F3d 113 [2nd Cir. 2000]); Payne v. United States, 359 F3d 132, n 4 [2nd Cir. 2004]).
Post Trincere
In applying Trincere, the First Department has since examined a variety of cases involving municipal and non-municipal land ownership and a wide array of pavement defects: ridges, holes, protrusions, depressions, cracks, gaps, and crevices. It has heeded the Court of Appeals "generally a question of fact for the jury" holding (see, Nin v. Bernard, 257 AD2d 417 [1st Dept. 1999] [depression]; Young v. City of New York, 250 AD2d 383 [1st Dept. 1998] [crevice], Abrevaya v. Steckman, 303 AD2d 329 [1st Dept. 2003] [oil fill cap]).
Courts in other departments have cited the ruling, but continue to find certain defects to be trivial as a matter of law (see generally, Ayala v. Gutin , 49 AD3d 677 [2nd Dept. 2008] [defective door saddle], Ryan v. KRT Prop. Holdings, LLC , 45 AD3d 663 [2nd Dept. 2007] [.09 degree slope deviation from code], Shohet v. Shaaya , 43 AD3d 816 [2nd Dept. 2007] [disturbed dirt], Hawkins v. Carter Community Housing Development Fund Corp. , 40 AD3d 812 [2nd Dept. 2007] [sidewalk gap], Joseph v. Villages at Huntington Home Owners Assn., Inc. , 39 AD3d 481 [2nd Dept. 2007] [curb cut], Outlaw v. Citibank, NA , 35 AD3d 564 [2nd Dept. 2006] [worn spot], Bekritsky v. TACS-4, Inc. , 27 AD3d 680 [2nd Dept. 2006] [gradual slope], Trionfero v. Vanderhorn , 6 AD3d 903 [3rd Dept. 2004] [slab raised less then an inch], Lamarre v. Rensselaer County Plaza Assocs., 303 AD2d 914 [3rd Dept. 2003] [worn curb]).
For instance, a jagged pothole, filled with water, cannot be trivial (see, Denyssenko v. Plaza Realty Services, Inc. , 8 AD3d 207 [1st Dept. 2004]); an edge which possesses a tripping hazard renders a defect nontrivial (see, Argenio v. Metropolitan Transportation Authority, 277 AD2d 165 [1st Dept. 2000]) (see also, Cohen v. Empire City Subway Co. (Ltd.), 1 Misc 3d 902A [Sup. Ct. New York County 2003][elevated construction plate not trivial]).
Likewise, where a 3/4 inch deep depression, nominally two feet long by two feet wide, existed in asphalt pavement, with an abrupt elevation difference around the perimeter, summary judgment was denied upon factual grounds (see, Tineo v. Parkchester South Condominium, 304 AD2d 383 [1st Dept. 2003]). Further, the First Department reversed a dismissal based on triviality involving an area of missing tiles in the entranceway of defendant's store because a factual issue was posed as to whether the defect constituted a tripping hazard (see, Gerber v. West Hempstead Convenience, Inc., 303 AD2d 212 [1st Dept. 2003]).
While not sufficient to reverse the trial court, the First Department found that cracks in a sidewalk emanating from a metal plate seal was sufficient to raise a triable issue as to negligence in maintenance (see, Feldman v. Kings Hero Restaurant, 270 AD2d 1 [1st Dept. 2000]).
Where the sidewalk defect that caused plaintiff to trip was a hole, three to five inches wide and three to five inches deep, the defect was not so trivial as to be non-actionable as a matter of law (see, Rosario v. City of New York, 289 AD2d 133 [1st Dept. 2001]). Again, a sidewalk defect was not "trivial," as a matter of law, where the defect was less than an inch deep, but contained an irregular zigzag like depression, between a foot and two feet in length, with sharp edges (see, Cela v. Goodyear Tire Rubber Co., 286 AD2d 640 [1st Dept. 2001]). And a depression defect was not trivial where the defect was two inches wide, two inches long, and deep, and of a sufficient size to entrap the toe of the sneaker (see, Argenio v. Metropolitan Transportation Authority, supra . at 165-166 ["(F)actors which make the defect difficult to detect present a situation in which an assessment of the hazard in view of the peculiar facts and circumstances' is appropriate."]).
Where an elevation differential of three-quarters to one inch (downward, in the direction plaintiff was walking) existed, together with a gap of up to one and a half inches in width, determination by a trier of facts was needed (see, Herrera v. City of New York, 262 AD2d 120 (1st Dept. 1999]). In this regard, the First Department has held that genuine issues of material fact exist as to whether a two-inch depression, in a walkway on a landowner's property, was a trivial defect (see, Gutierrez v. Riverbay Corp., 262 AD2d 64 [1st Dept. 1999]). Likewise, where a sidewalk had expansion joints twice as wide as the regulatory standard and the entire sidewalk was bisected by numerous crevices that were five-eighths of an inch wide and an inch deep, that defect was more than trivial (see, Young v. City of New York, 250 AD2d 383 [1st Dept. 1998]). Triviality Factors
By way of contrast, the First Department has occasionally (and more recently) found that in certain circumstances pavement defects can be trivial and there is no need to send the case to the jury (see generally, Riley v. City of New York, 854 NYS2d 400 {50 AD3d 344} [1st Dept. 2008] [celler door abutment], Stylianou v. Ansonia Condominium , 49 AD3d 399 [1st Dept. 2008]sidewalk slab depths of 1/8 inch to 3/8 inch]) (see also, Ayala v. Gutin , 49 AD3d 677 [2nd Dept. 2008] and Smith v. Wilerdam Property, Inc., 2008 NY Slip Op3362 [3rd Dept. 2008]).
A property owner may not be liable in damages for trivial defects on a walkway where those defects do not constitute a trap or nuisance, here in a case involving a depression beneath a rubber mat, as a consequence of which a pedestrian stumbles, stubs his toes, or trips over a raised projection ( see, Marinaccio v. Le Chambord Rest., 246 AD2d 514 (1st Dept. 1998).
This is true where the trivial nature of a defect "looms larger than another element present" ( see, Nathan v. City of New Rochelle, 282 AD2d 585 [2nd Dept. 2001]). In Nathan, the court found that a one-inch height difference, created by a crack in a sidewalk, is not actionable, and rejected plaintiff's assertions that triable issues of fact were raised by the time, place, and circumstances of the accident.
Our Appellate Division and trial courts have found triviality where an injury arose merely from the slope of the pavement. Thus, where an 80-year-old plaintiff fell while exiting a supermarket and her injury resulted where she took a step and lost her balance due to the "uneven pavement" and the "incline of the slope," the Appellate Division found that the conditions cited by plaintiff as the cause of her injury were too trivial to be actionable (see, Marcus v. Namdor, Inc. , 46 AD3d 373 [1st Dept. 2007]) (see also, Menendez v. Dobra, 301 AD2d 453 [1st Dept. 2003]). A similar holding resulted where there was a slope of approximately one half inch (see, Santiago v. United Artists Communications, Inc., 263 AD2d 407 [1st Dept. 1999]; Villaplana v. Kane Associates Family Ltd. Partnership, 17 Misc 3d 1129[A] [Sup. Ct. New York 2007]), and also resulted where there was a gradual depression (see, Figueroa v. Haven Plaza Housing Develop. Fund Co., Inc., 247 AD2d 210 [1st Dept. 1998]).
In a stairway case, the First Department found that an alleged defect in a concrete stairway landing, to which mail carrier attributed her trip and fall, of a height differential of less than inch between the defective area and the rest of landing, was trivial. It did not amount to a dangerous condition, absent evidence that such defect presented a significant hazard by reason of location, adverse weather, or lighting conditions, or other circumstances giving it characteristics of a trap or snare (see, Gaud v. Markham, 307 AD2d 845 [1st Dept. 2003]). A temporary plywood flooring, raised from the surrounding well-lit subway platform floor and painted bright yellow around the edges, was open and apparent and thus did not constitute a trap or snare for the unwary, and, under all the relevant circumstances, was too trivial to be actionable (see, Alonso v. NYC Transit Auth., 298 AD2d 311 [1st Dept. 2002]).
These cases from our Department requiring a per se finding of triviality are distinguishable because the herein matter involves more than a slope, a gradual depression, or a minimal hole. In determining whether a defect is trivial, the trier of fact must examine all of the facts surrounding the circumstances, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place, and circumstance of the injury."
Herein, the Court reasonably left the question of triviality to the jury, and the jury, upon this record, reasonably found, under these circumstances, that the facts reveal a situation where defendants incurred liability for the upkeep, or lack thereof, of the pavement.
Conclusion
There is no bright line rule of liability at play here; indeed, there may be no liability at all, as a matter of law, where an accident happens because a sidewalk defect is so slight or of such character that a prudent person would not reasonably anticipate a danger. Notwithstanding, a case involving such a trivial or minor defect is to be determined only after the peculiar facts and circumstances extant are well considered as opposed to discernment of a growing liberality of courts nationwide in leaving the question of liability to the jury (citations omitted).
Applying the above to the instant matter, the Court finds that the defect here — about two inches deep, six inches long, six inches wide, and full of rocks and debris — does not have the inherent nature requiring a per se finding of triviality.
Rather, having examined the facts presented, including width, depth, elevation, irregularity and appearance of the hole in question, as well as the time, place and circumstances of the accident, the Court concludes that the issue of triviality was properly to be decided by the jury and the jury properly found, in light of contested evidence as to the nature of its condition, that the condition was not trivial.
As to the remainder of Defendants thrusts, the Court is of the opinion that the jury rendered its verdict based upon a fair interpretation of the evidence (see, White v. NYC Transit Authority, 40 AD3d 297 [1st Dept. 2007], Nicastro v. Park, 113 AD2d 129 [2nd Dept. 1985]). The Court will not set aside the jury's verdict as such verdict was not against the weight of the evidence presented at trial. Rather, the jury's verdict was a rational decision based upon a preponderance of the evidence (see, Cohen v. Hallmark Cards, Inc., 45 NY2d 493and Lichtenstein v. Bauer, 203 AD2d 89 [1st Dept. 1994]).
Defendants are not entitled to a new trial on the issue of comparative fault. In essence, Defendants say that the jury failed to find the Plaintiff's comparative negligence where she was aware of the defect's condition over many years, and Plaintiff could have easily avoided the accident by merely sidestepping the dangerous condition. Likewise, Defendants argue that the $700,000 pain and suffering award is excessive.
Defendants condition this branch of their motion subject to Plaintiff having stipulated that Defendants are no more than 1% at fault for the Plaintiff's damages.
Upon taking into consideration the evidence of the extent of injury to the Plaintiff presented at trial, the jury's award of damages did not "deviate materially from what would be reasonable compensation" (see, Dauria v. New York, 178 AD2d 289 [1st Dept. 1991] and Venable v. New York City Transit Authority, 165 AD2d 871 [2nd Dept. 1990]).
Likewise, because this motion has been decided adversely to Defedants in all aspects, the continuance of the stay previously ordered by this Court is denied as moot. BASED UPON THE FOREGOING, it is
ORDERED that the branch of the Defendants' motion, pursuant to CPLR 4404(a), seeking to set the verdict aside and grant defendants judgment as matter of law, is DENIED; and it is
ORDERED that the branch of the Defendants' motion, pursuant to CPLR 4404(a), seeking to set the verdict aside and order a new trial upon the grounds that the verdict is against the weight of the evidence is DENIED; and it is
ORDERED that the branch of the Defendants' motion, seeking a new trial on the issue of comparative fault, is DENIED; and it is
ORDERED that the branch of the Defendants' motion, seeking to conditionally reduce the past and future pain and suffering awards as excessive, is DENIED; and is further
ORDERED that the branch of the Defendants' motion seeking to continue to stay the judgement's entry pending a decision on this motion, is DENIED as moot.
The foregoing constitutes the decision and order of the Court.