For all trip and fall accidents, a lawyer must always argue that the condition which caused the fall was dangerous. Sometimes, the defendants will argue the defect was “trivial” or “open and obvious” and the case should be dismissed.
In a trip and fall case, a pedestrian was jogging on a two-way street. There was traffic was coming from each direction. To avoid an approaching vehicle, the pedestrian moved her left, towards the side of the road. After moving over, she was injured when she tripped and fell over the raised edge of a dip or “depression” in the roadway.
Ongoing construction work created the roadway defect. At the time of the accident, a construction company was excavating the roadway. The company was installing gas lines. The injured jogger sued the construction company. She claimed that the company failed to protect her from the dangerous roadway condition created by its excavation work. In response, the construction company argued that the roadway defect was “trivial” and the case should be dismissed. The pedestrian’s trip and fall lawyer opposed the construction company’s request.
In New York, to determine if a roadway defect is “trivial” the courts will look at the defect’s width, depth, elevation, irregularity, and appearance. It will also look at the time, place and circumstances which caused the accident. Unless a defect is “trivial” or “physically insignificant”, a jury must decide the issue of whether it is dangerous.
Here, the construction company asked the trial judge to dismiss the case. The lower court granted the request. The trip and fall lawyer appealed on behalf of the pedestrian. The lawyer argued that the construction company did not prove that the roadway defect was “trivial.” The higher court agreed and found that the construction company failed to establish that the roadway defect was insignificant. The company also failed to show that it did not create a risk of injuring pedestrians on the roadway. The injured pedestrian was able to reverse the lower court’s decision dismissing her case. She did so by describing the dangerous nature of the defect that caused her injuries.
In this case, the higher court looked at photographs of the roadway defect. The court also looked at evidence which showed the accident occurred while the construction company was restoring an excavated area. In addition, the court noted the defect’s measurements. The roadway defect was about four-feet wide and eight-feet long. It was also at least one-inch deep. The higher court held that the construction company did not prove the condition it created was physically insignificant. Nor was the company able to prove the excavation work did not increase the risk of the pedestrian becoming injured.
The higher court also rejected the construction company’s argument that the pedestrian should have avoided jogging into the roadway. Photographs showed orange markings placed around the defect’s perimeter. When a pedestrian brings a lawsuit for a trip and fall in the roadway, defendants often argue the hazard was “open and obvious”. This means an injured person who makes reasonable use of his or her senses should have been aware of the condition and avoided it.
Here, the court agreed with the trip and fall lawyer and found that even if the roadway condition was “open and obvious,” the construction company was also required to show the condition was not “inherently dangerous”. This term means that the owner (or in this case, the company excavating the roadway) must prove the condition was one that did not require repairs to prevent persons from becoming injured. The court found the construction company did not prove the defect was “open and obvious” and not “inherently dangerous.”
This case shows how important it is for the trip and fall lawyer to establish from the beginning of a case the condition of the defect that caused the accident. An injured person may not think to take photographs immediately after his or her accident. Contacting an attorney as soon as possible after your accident is essential as we will take photographs and measurements of the roadway condition before it changes. By investigating the accident scene, we can prove that a condition was dangerous and one that the responsible party should have repaired.