What do I have to prove in my slip and fall case?

In order to establish a case in a slip and fall case of negligence, you must demonstrate that the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant’s employee to discover and remedy it. Fontana v Fortunoff, 246 AD2d 626, 626 [2d Dept 1998].

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. Baird v Four Winds Hosp., 140 AD3d 810, 811 [2d Dept 2016].  In determining whether a defect is trivial, the court must examine all the facts presented, including “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury”.  “[T]here is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” Baird v Four Winds Hosp., 140 AD3d 810, 811 [2d Dept 2016].

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