Were Pictures, Absent Measurements, Sufficient to Establish Liability
During a July afternoon Kathy Synder and her husband, D. Jay Snyder, parked in the long-term parking lot at Stewart International Airport in Orange County and walked toward the Airport terminal to catch a flight. It was, according to Kathy, a “nice, clear day.” Kathy and D. Jay each pulled a piece of carry-on luggage behind them. They walked on a sidewalk that was separated from an access road by a fence, with D. Jay to the left and Kathy to his right. At approximately 4:00 p.m., Kathy tripped on what she later described as “a piece of raised sidewalk,” causing her to fall and sustain injuries. A cone was subsequently placed at the site where Kathy tripped. Photographs of the area were taken that day at 4:03 p.m., along with others taken a few days later. Repairs were made to the sidewalk in the days following the incident, before any objective measurements were made by anyone of the misleveled sidewalk slab where the accident occurred.
The Snyders sued AFCO Avports Management LLC and the Port Authority of New York & New Jersey to recover damages for personal injuries Kathy allegedly sustained as a result of the accident. AFCO provided certain management services for the Airport and managed the long-term parking lot. The Port Authority was the commercial lessee of the Airport.
At their depositions, neither Karen nor D. Jay were asked to describe or estimate the elevation differential of the adjoining concrete slabs at the accident location. Two incident reports, one prepared by a New York State Trooper who came to the scene and a second prepared by Airport Operations, generally described the date, time, and place of Kathy’s fall and injuries, but neither report described the height differential of the sidewalk slabs. The deposition testimony of the Airport terminal manager, who was not at the scene on the date of the accident, also contained no description, measurement, or estimate of the height differential between the two adjoining concrete slabs relevant to this action.
AFCO and the PA moved for summary judgment dismissing the complaint. They argued that their submissions, including photographs, deposition testimony, and an affidavit of a human factors expert, established that the alleged sidewalk defect was trivial as a matter of law and, thus, not actionable. The Snyders opposed the motion. They argued that AFCO and the PA failed to demonstrate their prima facie entitlement to judgment as a matter of law because they failed to submit an objective measurement of the defect and the photographs they submitted depicted a significant height differential at the location of the accident. Notably, the Snyders’ opposition papers did not include an affidavit from either of them and, therefore, did not describe or estimate the height differential at the two adjoining concrete slabs. A sworn statement from an independent witness, who had also been walking on the sidewalk shortly after Kathy’s accident, likewise included no estimate of the size of the alleged trip hazard.
Supreme Court granted the AFCO/PAs motion for summary judgment dismissing the complaint. The court reasoned that in light of the photographs, the deposition testimony, and the expert affidavit, they established their prima facie entitlement to judgment as a matter of law by demonstrating that the condition was trivial as a matter of law and, thus, not actionable. The court concluded that the Snyders failed to raise a triable issue of fact in opposition.
The Snyders appealed and argued that AFCO/PA failed to establish, prima facie, that the sidewalk defect was trivial as a matter of law, as theys did not submit objective measurements of the alleged defect’s dimensions.
On a motion for summary judgment, the moving party must make a prima facie showing of its entitlement to judgment as a matter of law before the burden shifts to the party opposing the motion to establish the existence of a triable issue of fact.
A party seeking dismissal of a complaint on the basis that the alleged defect was trivial must make a prima facie showing that the defect was, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks it posed. Only then does the burden shift to the plaintiff to establish an issue of fact.
Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury. However, property owners may not be held liable for trivial defects that, considering all the specific facts and circumstances of the case, not size alone, do not unreasonably imperil the safety of a pedestrian. In other words, even physically small defects are actionable when their surrounding circumstances or intrinsic characteristics make them difficult for a pedestrian to see or to identify as hazards or difficult to traverse safely on foot. And there is no minimal dimension test or per se rule that the condition must be of a certain height or depth to be actionable .
In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury. Photographs which fairly and accurately represent the accident site may be used to establish that a defect was trivial and not actionable. And, in trip-and-fall actions, photographs of accident locations are routinely submitted on a motion for summary judgment by one or more parties.
The 2015 Hutchinson decision from the Court of Appeals was actually three separate cases that were joined and decided together. Two of the three cases included photographs and objective measurements of the alleged hazards, which were not the focus here. The third case in Hutchinson was that of Maureen Adler, who alleged that she had tripped over a protruding “clump” in the middle of a step on an interior staircase in a building owned and managed by the defendants. The defendants moved for summary judgment dismissing the complaint and proffered deposition testimony and photographs, but no objective measurement of the alleged defect, as here. The Court of Appeals determined that the defendants failed to make a prima facie showing that the defect was trivial as a matter of law, as the deposition testimony and “indistinct” photographs, without measurements of the alleged defect, were inconclusive. And, without evidence of the dimensions of the ‘clump,’ it was not possible to determine whether it was the kind of physically small defect to which the trivial defect doctrine applied. The Court further explained, however, that it did not imply that there were no cases in which a fact-finding court could examine photographs and justifiably infer from them as a matter of law that an elevation or depression or other defect was so slight as to be trivial as a matter of law. Meaning deciding in a given case whether photographs may sufficiently show triviality without objective measurement depended on what the photographs depicted.
Thus, the controlling precedents demonstrate that a defendant may establish, prima facie, that an alleged defect was trivial as a matter of law and, thus, not actionable, even without submitting an objective measurement of the alleged defect’s dimensions. However, cases also illustrate that a defendant moving for summary judgment who does not submit an objective measurement of the alleged defect has greater difficulty and often fails to demonstrate triviality as a matter of law. That is unsurprising given that a court determining whether a defect is trivial must examine all the facts presented, including, among other things, the width, depth, and elevation of the alleged defect.
For a defendant moving for summary judgment on the ground of triviality, a picture, as the adage states, is worth a thousand words. The persuasiveness of photographs will depend on what reasonable inferences regarding the alleged defect may be drawn from them. On the one hand, “indistinct” photographs or photographs from which “it is impossible to ascertain the extent of the height differential will not aid a moving defendant in establishing triviality. On the other hand, even without an objective measurement of the alleged defect, there likely will be situations where the alleged defect’s dimensions reasonably may be inferred from the photographs alone or in conjunction with other evidence.
Here, the record included 11 color photographs taken of the accident location prior to the repairs that changed the configuration of the concrete slabs in relation to one another. The photographs were taken from various distances, angles, and elevations. They were clear in their depictions. Kathy identified at her deposition that she tripped at the misleveling of two concrete sidewalk slabs closest to the chain link fence that separated the area from a motor vehicle access road. In her direction of travel, there was a manhole cover embedded in the slab directly ahead of her and the adjacent slab to the left. The manhole cover was unrelated to the accident except to the extent that Kathy testified at her deposition that she was more concerned about the “metal plate” than she was about the sidewalk. Certain photographs, taken from some distance, did not visually depict any misleveling of the slabs. Other photographs, taken from much closer positions, depicted a misleveling between the two involved slabs, with a sloping expansion joint between them of lighter color than the adjoining concrete. An orange construction cone sat at the accident location on the higher slab, with a portion of the cone’s horizontal base hanging over and above the lower slab. The closest photograph of the cone depicted small vertical feet under the cone’s base, which increased the height differential between the lower slab and the underside of the cone’s base. Sunlight casts a shadow into the area beneath the base of the cone. The misleveling of the concrete slabs appeared to be greater on the side of the sidewalk used by D. Jay than the side used by Kathy.
No reported case discussed precisely how photographs should be examined to determine whether a defect was trivial. Where no objective measurement is provided, the height, depth, or other dimensions of an alleged defect ideally should be viewed near other objects of known or standard size that are present, such as a coin, a shoe, a baseball, a soda can, or other objects of uniform size. The absence of objects of known size rendered the examination of photographs more difficult, as depictions from up close, or from far away, may lack the proper angle and visual context for making an informed and accurate assessment of an alleged defect’s size. Courts cannot guess in matters of summary judgment.
In this case, the best monument in some of the proffered photographs that was of known size, and which provided the viewer with visual context, was the orange construction cone sitting atop the misleveled concrete slab where Kathy fell. Nevertheless, the Court could not with precision quantify the height differential of the adjoining slabs even with the presence of the cone, and also could not say that the differential depicted was small enough as to be trivial as a matter of law.
There were other objects depicted in various photographs. Other objects of known size must be located within the photographs sufficiently proximate to the alleged hazard against which they were measured. Here, while some of the submitted photographs depicted additional objects or subjects—such as cars, a law enforcement officer, and, in one photograph, Kathy lying on the sidewalk in the aftermath of her fall with luggage close by—no object or subject was positioned in such place, manner and proximity as to enable a reasonable inference to be made of the alleged defect’s dimensions.
In addition to the height differential depicted in the photographs, the Court took into account other necessary factors relating to triviality. The sidewalk provided a route from the Airport’s parking to its terminal, used daily by busy pedestrians engaged in personal or commercial travel, often while carrying or pulling luggage of varying weights. There was no paint, pre-accident cone, or other warning to pedestrians of the elevation differential between the slabs. Further, no deposition testimony, incident report, expert opinion, or other evidence quantified or estimated the height of the misleveling at the site of the accident.
In all, the submissions by AFCO/PA, including the photographs, even when considered in combination with the deposition testimony and other evidence, did not support the Supreme Court’s conclusion of triviality as a matter of law.
AFCO/PA proffered an affidavit of a human factors expert. The expert rendered an opinion that the change in elevation between the sidewalk slabs was minimal and did not constitute a trap or snare; the condition was identifiable as to be passed over safely; Kathy’s concern about the manhole cover would have increased her awareness of the sidewalk elevation change; and, had Kathy been more attentive, she could have negotiated the elevation change safely, as did her husband. The expert further opined that given the height differential and daytime lighting at the time, “the elevation change could have been appreciated in excess of 10 steps away.”
Typically, when experts are retained by parties to render opinions about trip defects, our courts see professional engineers who provide specific measurements and who also cite to relevant codes and standards. Here, no party obtained an objective measurement of the height differential, as the sidewalk was repaired within days of the accident, which prevented measurements from being obtained. AFCO/PA therefore turned to human factors expertise to potentially compensate for the absence of objective measurements. That area of expertise is also sometimes referred to as “body mechanics”.
Research revealed only one fall-down case in the trivial defect context involving a human factors expert. There, an expert rendered an opinion that the half-inch trip hazard, which would ordinarily be considered trivial, was not trivial because it was located in a highly trafficked area, in poorly lit conditions, and in a manner violative of defined building and housing maintenance codes. The Court determined that the expert’s opinion raised triable issues of fact sufficient to defeat the defendant’s motion for summary judgment. Significantly, in that case there was an objective measurement of the trip hazard on which the human factors expert’s opinion was based.
There must be data, measurements, personal observation, or testimony for an expert witness’s opinion to be informed and admissible.
The Court had no issue with the Snyders” or AFCO/PA’s attorneys presenting human factor experts in cases where such expertise was relevant, detailed, and helpful to the resolution of issues on summary judgment or at trial. Here, however, the Court found the human factors expert’s opinion to be conclusory and speculative, absent an objective measurement of the height differential or at least a fairly inferable estimate of it for him to conclude that the differential was visible, identifiable, and avoidable from at least 10 feet away. An expert’s conclusory or speculative opinion is of no probative force. Under the circumstances of the case, the human factors expert’s opinion did not enable AFCO/PA to meet their prima facie burden of establishing the triviality of the alleged sidewalk defect.
Finally, there was no inconsistency in saying that an expert’s opinion must be based on a detailed description of a hazard, while photographs, in a given case, may establish the triviality of a defect. The difference is that photographs show what they show, whether sufficient to establish triviality or not. Experts, on the other hand, provide opinions in matters that help clarify issues calling for professional or technical knowledge beyond the ken of the typical finder of fact and, therefore, were held to a higher standard.
AFCO/PA failed to meet their initial burden of making a prima facie showing of entitlement to judgment as a matter of law, the burden therefore did not shift to the Snyders to establish the existence of a material triable issue of fact
The order of Supreme Court was reversed, on the law, and AFCO/PA’s motion for summary judgment dismissing the complaint was denied.