Was Defect in Steps Obvious or Actionable?
Jason Collins tripped and fell around 6:15 p.m. as he was leaving the home of Donald and Marilyn Comilloni on Granite Springs Road in Granite Springs. His injuries included rupture of a tendon and ligaments of the right ankle as well as bone contusion and fracture.
Collins, accompanied by his wife Melissa and a realtor, had gone to the house to look at it for possible purchase. As they left the home, they exited from the side of the house to traverse along the exterior walk-way owned and maintained by the Comilloni’s.
It was dark at the time and there was no exterior lighting. As he stepped out of the house and onto the walkway, Jason stated at his deposition that his right foot rolled because the step was loose, wobbly, and unstable. He was unable to maintain balance in the absence of a handrail and was unable to prevent himself from falling and sustaining injury. Shown a photograph of the front of the house at his deposition, he identified a “crack/gap in the step” which caused him to fall.
In her affidavit, Melissa stated that she returned to the property the following day to inspect the area where her husband fell. She described the step as “not level” in addition to being “wobbly and loose.” She further observed a “gap between the pavers.”
The Comilloni’s became owners of the house in 1991. The house was “remodeled entirely in 1999,” and no repairs of the front of the house were made after that date. Donald Comilloni testified that there were no “incidents or accidents that dealt with the steps” prior to the accident involving Collins. He and his wife were not at home during the time of the Collins’ visit to their house.
The Comilloni’s moved for summary judgment on two grounds: (1) no notice of defect; and (2) any defect observed and alleged by Collins as causing the accident was “trivial” and thus not actionable.
A property owner who is responsible for maintaining a premises and who moves for summary judgment in a slip and fall case involving the property has the initial burden of making a prima facie showing that the owner neither created the condition that caused the accident nor had actual or constructive notice of its existence for a sufficient length of time to discover and remediate the condition.
To provide constructive notice, a defect must be visible and apparent and exist for sufficient time, pre-accident, to permit discovery and remediation by the owner. To meet the initial burden of showing lack of constructive notice, the owner must submit some evidence of when the area in question was last cleaned or inspected in relation to the time the fall.
In this case, the photographs of the steps showed gaps between the “pavers,” that made up the two tread steps leading immediately from the front door down to the walkway. In addition to the gap on the top step, there appeared to be a crack as well. The Court concluded that the gaps and the crack shown in the photographs might fairly be said to be “visible and apparent.”
As to the time of existence, the gaps appeared to have been part of the step construction, in as much as the tread step gaps appeared in two more tread steps positioned at intervals further along the walkway leading from the doorway. As stated by Donald Comilloni at his deposition, no repairs of the front of the house were made after the date when repairs to the house were last done (1999). Thus, presumably the stair tread configuration shown in the photographs existed for years prior to the accident. While it may be said that the Comilloni’s did not regard the tread step condition or configuration as presenting a hazardous condition, it could not be fairly stated that the configuration and condition of the tread would have never been noticed by them as they traversed the walkway any time they exited or entered the front door.
It appeared to the Court that, at a minimum, there were issues of fact that could not be cast aside as a matter of law. As a result, the Comilloni’s failed to make a prima facie showing that they neither created the condition that caused the accident nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy the condition.
As to whether the defects, identified in the photographs as accident causes, were “trivial,” it could not be said as a matter of law that they were. That remained a question of fact to be determined by a jury.
A property owner may not be held liable for trivial defects that may not be properly regarded as traps or nuisances, but may instead be regarded as defects over which a pedestrian might merely stumble, trip, or stub toes. Nevertheless, in determining whether a defect was trivial, the court must examine all of the facts presented, such as the step’s width, depth elevation irregularity, and appearance, as well as the time, place, and circumstances of the injury.
An owner seeking summary judgment on the basis that the alleged defect was trivial must make a prima facie showing that the defect was physically insignificant and that the surrounding circumstances did not increase the risk the defect posed before the burden shifts to the injury party.
In this case, no measurements of the alleged defects were presented by the Comilloni’s as proof of triviality even though defect measurements were regarded as relevant facts on the issue. Nevertheless, measurements by themselves are typically not dispositive. However, in this case, the surrounding circumstances cast a broader light on the issue.
At the time of the accident, when Collins exited the residence, it was dark outside. While there were exterior light fixtures to illuminate the stairs and pathway, the lights were never turned on at any time so the area was fully dark. The stair treads were dark gray and not visible in significant detail. A rubber mat on the top step covered from view a significant part of the “gap” between the two step treads. No railing or other such item was present to guide ones step or provide stabilization.
In addition, the location (the exit itself) may be regarded as a factor. The Collins’ were leaving the house to return home and the fall took place as they exited the door. In their assessments of whether a trivial defect did or did not exist, courts have recognized that while exiting through a doorway, pedestrians are naturally distracted from looking down at their feet making a measurably small defect more dangerous than might otherwise be perceived.
The Court denied the Comilloni’s motion for summary judgment. The admissible evidence they proffered did not meet the burden of proof necessary to make a prima facie showing of entitlement to summary judgment as a matter of law and failed to demonstrate the absence of any material issues of fact.