Size Doesn't Matter, Except . . .

satisfaction that might bring. This case will be fully consigned, as Trincere, to be discussed ad nauseum over the next few years by plaintiffs unsuccessful in convincing lower courts that summary judgment is not the slippery slope of the Apocalypse. Instead, we cut to the all too familiar chase.

In an exhaustive opinion, Judge Fahey explains that the "trivial defect doctrine" of Trincere is this: "A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact." In New York, the test is "not whether a defect is capable of catching a pedestrian's shoe. Instead, the relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances."

There's far too much really great dicta to review here, but no matter what side of the caption you're on, everything you'll ever need is in this case. And there, or course, lies the rub. Oh, and as to the those pretty photographs that come with each trivial defect motion, depicting every City street as if it were the runway on Tinian? No problem. They're not conclusive, unless they are, in which case the lower courts can examine them and "justifiably infer" triviality where it's appropriate. Déjà vu, Yogi.