I fell in the parking lot of a bagel store that I frequent. There was a piece of chain link fence that was sticking out in the parking lot. I have walked by this defect manytimes without falling. Can I still make a claim against the parking lot for my injuries?
The short answer is yes. But as you have already figured out, there will be some problems with your case.
De Minimus versus Open and Obvious
The first issue is the size of this piece of fence. If the broken fence piece is really small (say less than 1/2 inch), the owner of the parking lot can claim the legal defense that the condition is de minimus. That is, no reasonable person could possible fall on such a small defect. If this broken fence piece is really big, the owner of the parking lot can claim the legal defense of open and obvious. That is, everybody who walks by the defect should see what was there to be seen and avoid the foot trap.
I am inferring from your question that your case is a defect somewhere between the two defects mentioned above. Fortunately for you, even if you knew about the condition and could have avoided it, you can legally claim that you had momentary forgetfulness about the broken fence and had tripped anyway. There no legal doctrine or jury charge specifically on “momentary forgetfulness” since the law changed to comparative negligence in 1975. See Flynn v City of New York. The plaintiff can testify and attorneys can argue that the plaintiff may have walked by the defect before the accident, but he momentarily forgot about it. People do not walk through life expecting they are in a minefield looking for and remembering every defect and pothole. It is not expected that a person will have to remember every time they walk that there is a known defect. People walk erect and look straight ahead when they walk. Sometimes people just don’t look and don’t remember a known hazard in their path. It is up to the landowner to repair defects.
It is impossible for me to say how your case will turn out. The Court of Appeals has been very explicit that there is no specific test to determine if a defect is too small or too obvious. There are many circumstances the court would consider, not just the size of the defect. You have a good legal argument for your case, but the parking lot owner also has a good legal argument as well.