A Break in the Sidewalk

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Q: While walking on a private sidewalk with my granddaughter, I tripped and fell at a two-inch height discrepancy between two concrete slabs.

A: The owner is likely to make two somewhat inconsistent contentions: (1) that two inches are too ‘trivial’ to have been the cause of your accident and (2) that the condition was ‘open and obvious’.  Either way, the owner will be saying that you are a victim of your own inattentiveness.

Generally, the issue of whether a dangerous or defective condition exists on real property depends on the particular facts of each case, and is properly a question of fact for the trier of fact.  However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip.

In determining whether a defective condition is trivial as a matter of law, a court must examine the facts presented, including the width, depth, elevation, irregularity, and appearance of the condition, along with the time, place, and circumstances of the injury.  There is no minimal dimension test or per se rule that the condition must be of a certain height or depth in order to bring suit.

Similarly, the issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question for the jury.  Whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances.  A condition that is ordinarily apparent to a person making reasonable use of her senses may be rendered a trap for the unwary where the condition was obscured or you were distracted.  This sounds like a case well worth taking.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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