Summary
holding one half inch dip in a carpeted floor non-trivial, because area of missing carpet similar in color to the adjacent carpeted area and it was located in a dimly-lit cart corral in a retail store
Summary of this case from Scott v. U.S.Opinion
Argued March 13, 2000.
April 17, 2000.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Doyle J.), dated March 11, 1999, which denied its motion for summary judgment dismissing the complaint.
Bushell, Brody, Kleczka, Minasi O'Connor, LLP, Northport, N Y (Thomas M. O'Connor of counsel), for appellant.
Michael Kaszubski, P.C., Melville, N.Y., for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, SONDRA MILLER, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The issue of whether a dangerous or defective condition exists on the property of another depends on the peculiar circumstances of each case and generally presents a question of fact for the jury (see, Guerrieri v. Summa, 193 A.D.2d 647 ). Moreover, while injuries resulting from trivial defects are generally not actionable (see,Hecht v. City of New York, 89 A.D.2d 524 ), in determining the issue of triviality one must examine all the facts presented, including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place, and circumstances of the injury (see, Trincere v. County of Suffolk, 90 N.Y.2d 976 ).
In this case, the appellant established a prima facie case for judgment as a matter of law. The plaintiffs, however, raised a triable issue of fact as to whether an area of missing carpet, allegedly one-half inch lower than the surrounding carpeted floor, which was similar in color to the adjacent carpeted area and located in a dimly-lit cart corral of the defendant's retail store, presented a trap for the unwary. These same factors preclude a determination, as a matter of law, that the alleged defect was readily observable by the reasonable use of the injured plaintiff's senses so as to obviate the need for a warning (see,Kinfe v. Port Auth. of N.Y. N.J., 232 A.D.2d 373). Accordingly, these issues must be submitted to a jury for determination (see, Guerrieri v. Summa, supra).