Sacramento Injury Lawyer Blog

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

Notice of the Defect by the Property Owner or the Type of Property the Sidewalk Defect is Located Plays No Role in Determining Triviality.

In trivial defect doctrine cases it has sometimes been argued that because an individual or entity had notice of the defect's existence, such notice is a factor which can impose liability despite a defect otherwise being classified as trivial. Courts have uniformly rejected this argument. In Caloroso, the court said "minor defects ... [in sidewalks] inevitably occur, and the continued existence of such cracks without warning or repair is not unreasonable." Thus [the defendant] is not liable for this accident irrespective of the question whether he had notice of the condition. Caloroso v. Hathaway, 122 Cal. App. 4th 922, 927. (Also see: Barrett v. City of Claremont, 41 Cal. 2d 70, 73).

Notice of a defect does not somehow make a defect less trivial. Additionally, notice has never been included as an aggravating factor or a factor that is viewed as part of the totality of circumstances surrounding a defect in any of the leading sidewalk defect cases.

Continue reading "Defect In Sacramento Mall Sidewalk Not Trivial As Woman Is Injured, Part 5 of 5" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

ARGUMENT

The Sidewalk Differential Should Be Classified As A Trivial Defect As A Matter Of Law.

It is well established that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on property. Courts have referred to this simple principle as the trivial defect defense. Caloroso v. Hathaway, 122 Cal. App. 4th 922, 927 (2004); citing: Whiting v. City of National City, 9 Cal. 2d 163 (1937).

In Ursino v. Big Boy Restaurants, 192 Cal. App. 3d 394, 397 (1987), the court stated that the trivial defect defense could be asserted by both governmental and nongovernmental defendants alike because it is impossible to maintain heavily traveled surfaces in a perfect condition ... minor defects ... are bound to occur in spite of the exercise of reasonable care by the party having the duty of maintaining the area involved. (Citing: Graves v. Roman, 113 Cal. App. 2d 584, 586-587 (1952)).

The trivial defect defense is not an affirmative defense but instead is an aspect of duty that a plaintiff must overcome. Caloroso, 122 Cal. App. 4th 922, 927 (2004). The most important question is whether the plaintiff has shown there is a triable issue as to whether there was a dangerous condition in the walkway that the defendant had a duty to repair. Id.

Continue reading "Sacramento Store Fights Liability For Trip And Fall By Customer, Part 4 of 5" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

STANDARD OF REVIEW

Universal Mall moves for summary judgment pursuant to Code of Civil Procedure § 437c, which provides the statutory authority for the Court to grant this motion. This Section provides in relevant part:

(a) Any party may move for summary judgment in any action of any proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.
(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

(o) A cause of action has no merit if either of the following exists:
(A) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded.
(B) A defendant establishes an affirmative defense to that cause or action.

Continue reading "Slip And Fall At Sacramento Mall Store Leads To Lawsuit, Part 3 of 5" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

STATEMENT OF FACTS

On March 14, 2007, Judy Brown and her husband Kenneth drove to the Universal Mall ("Universal") in Sacramento, California. Mrs. Brown had been to Universal several times in the past. After two hours of shopping, she exited the mall through the same route that she entered. Mrs. Brown's husband had exited about ten minutes earlier and she proceeded outside to meet him in the parking lot.

As she proceeded to the car, she was not paying attention to anything in particular and was looking straight ahead. The next thing Mrs. Brown realized was that she had hit the ground and jumped right back onto her feet. She did not feel her foot catch the pavement, nor does she have any evidence as to what might have caused her to fall.

At the time of her accident, Mrs. Brown was wearing flat-soled walking shoes and carrying two bags. Mrs. Brown testified that on the day in question, the area where she traversed was clear of leaves and debris. The weather on the day of the accident was beautiful and sunny. Further, she stated that she had no problems seeing and there were no shadows on the concrete. Plaintiff later measured a raised area between two concrete slabs where she alleges she tripped and found it to be one-half inch or less in height. (See Part 3 of 5.)

Continue reading "Woman Trips and Falls Outside Sacramento Department Store, Part 2 of 5" »

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

Defendant Universal Mall’s Motion for Summary Judgment.

The instant Motion for Summary Judgment shall be based on the undisputed facts set forth in the Separate Statement of Undisputed Material Facts and Reference to Supporting Evidence accompanying this motion, and the unrefuted evidence set forth in the evidentiary material submitted with this motion referenced therein, on the grounds that these undisputed facts establish that a complete defense to each of the causes of action of plaintiffs Complaint and/or that plaintiff cannot establish an essential element of each of these causes of action. Moving defendant is therefore entitled to summary judgment as a matter of law, pursuant to Code of Civil Procedure 437c.

MEMORANDUM OF POINTS AND AUTHORITIES

Defendant Universal Mall (hereinafter "Universal Mall") hereby requests the court to award summary judgment in its favor, as no triable issues of material fact exist as to plaintiff's causes of action against it. Plaintiff alleges the Universal Mall acted negligently and that such tortuous conduct was the proximate cause of her injuries. A negligence cause of action assigns liability to a party when it is found that party owed a duty of care to the plaintiff, breached their duty of care, and that his conduct was the proximate cause of the plaintiff's injury.

Continue reading "Sacramento Mall Denies Responsibility For Trip And Fall, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

In Defendant next states that "Plaintiff has visited Universal Mall on multiple occasions.” Query: Without proving that Plaintiff had traversed over the same section of defective sidewalk prior to the accident, and knew of its existence before the accident, what relevance does this fact have to the Defendant's argument that the defect was trivial? The answer is: None.

As explained above, Defendant's Statement of Undisputed Facts consists, in part, of misstatements of the facts regarding the extent and nature of the defective condition of Defendant's property which caused Plaintiff's accident. The Statement of Undisputed Facts also includes alleged facts which are irrelevant to Defendant's Motion for Summary Judgment. Because Defendant's Statement of Undisputed Facts and supporting evidence is insufficient to support its motion, the motion should be denied.

DEFENDANT'S MOTION SHOULD BE CONTINUED OR DENIED BECAUSE DISCOVERY HAS NOT BEEN COMPLETED

Pursuant to Cal. Code of Civil Procedure §437c(h), if it appears from an affidavit submitted in opposition to a motion for summary judgment that the facts essential to justify opposition may exist, but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make an order that is just ....

An Answer was not filed until July 23, 2009 by Macy’s West, and the order the amended complaint was not signed and filed by the Court until August 10, 2009.

Continue reading "Shopper At Sacramento Mall Injured Due To Dangerous Sidewalk, Part 9 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

Defendant states that "Mrs. Brown was concentrating on getting to her car and looking straight ahead." Plaintiff does not dispute this fact. However, Plaintiff does dispute the inference of negligence attributed to her for not staring closely at the sidewalk to discover a defect on the sidewalk. The law is quite clear on this subject: A pedestrian is not required to fix his eyes on the ground or to be on the constant lookout for danger; rather, he "has the right to assume that it (the sidewalk) is in a reasonably safe condition." Peters v. City and County of San Francisco (1953) 260 P.2d 55, 59, a California Supreme Court decision. Likewise, Plaintiff had a right to assume that the sidewalk at the Mall was safe to walk on.

Further, the above assertion is irrelevant to Defendant's trivial defect defense, as it pertains only, if at all, to the issue of contributory negligence.

Defendant also states that the Plaintiff was carrying a lightweight Macy's bag and her purse at the time of the incident. Plaintiff does not dispute this fact, but asks the question: What relevancy does this fact bear on the Defendant's motion? The answer is: None.
Defendant then states that Plaintiff had no difficulty seeing at the time of her accident . Plaintiff does not dispute this fact; however, Plaintiff was not required to search the sidewalk for a defect as she was walking on it (Peters, supra, at page 59). So, what relevance does this fact have in this motion or case? T he answer is: None.

Continue reading "Sacramento Mall Pedestrian Trips And Falls On Dangerous Sidewalk, Part 8 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

GENUINE TRIABLE ISSUES OF FACT EXIST SUFFICIENT TO JUSTIFY THE COURT'S DENIAL OF DEFENDANT UNIVERSAL MALL'S MOTION FOR SUMMARY JUDGMENT

In support of its motion, Defendant has offered its separate statement of undisputed facts and supporting evidence, asserting that these facts and supporting evidence warrant a granting of its motion on the theory that Plaintiff Judy Brown is unable to prove that Defendant had a duty of care toward her. It is not the burden of Plaintiff to disprove the Defendant's lack of duty defense; rather, the burden of proof is on the defendant to prove, by evidence, that this defense is justified. See Cal. Civ. Code § 437(c)(p)(2).

In its Separate Statement of Undisputed Material Facts, in support of its trivial defect/no duty of care defense, Universal Mall states that her own measurement of the lip she alleges caused her to fall is about 1/2 inch . In support of this alleged undisputed material fact, Defendant cites Plaintiff's deposition testimony and refers to the photograph of the sidewalk, taken by Plaintiff's husband, Kenneth. Plaintiff disputes this alleged fact. As stated in the Declaration of Judy Brown, she misstated the height of the elevation of the upraised portion of the sidewalk. It was actually about one-inch in height, not one-half inch in height. See Paragraph 6 of Plaintiff's Declaration.

Further, the photographs taken by Kenneth Brown of the defective area of the sidewalk show that the upraised portion of the sidewalk measures about one-inch. And, as stated in the Declarations of Judy Brown and Kenneth Brown, the defective condition of the sidewalk consisted not only of a one-inch elevated portion of the sidewalk, but also a gap between the portions of pavement where she tripped and fell, measuring approximately one inch.

Continue reading "Sacramento Mall's Unsafe Pavers Cause Shopper To Fall, Part 7 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

In the instant case, Plaintiff's theory of the liability of Defendant Universal Mall is neither based upon or determined by the burden of proof set forth in the Government Code. And, as one can see, based on the discussion of liability in the Fielder case, the court focused on the issue of what is a "dangerous condition" of public property, citing numerous cases where the defendant was always a public entity.

However, even in Fielder, the court conceded, on the issue of whether a particular condition is a dangerous or defection condition, that other courts, such as the court in Gentekos v. City and County of San Francisco (1958) 163 Cal.App.2d 691, 309 P. 2d 943, have held that whether a condition is dangerous or defective is generally a question of fact. See Fielder, at p. 730. But again, as stated, the Fielder decision is a narrowly construed case, as it only applies to premises liability actions against public entities in California.

Returning to the decision in Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, cited by Defendant, the defect in that case was an elevation on the sidewalk that was less than one-half inch at its highest point. It is no wonder that the court considered this to be a trivial defect. Contrast that defect with the one in Plaintiff Judy Brown's case: a one-inch elevation and a one-inch gap between the sidewalk pavers. (See Part 7 of 9.)

Continue reading "Dangerous Sidewalk Condition Results In Fall At Sacramento Mall, Part 6 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

In the instant case, we are not presented with a "mere crack" in the pavement; rather, we are dealing with a one-inch rise in the pavement and a one-inch gap between the pavers. In Caloroso, the court, focusing simply on a crack defect, stated that minor defects like a crack in the walkway are "inevitable," so the failure of the homeowner to warn the plaintiff, or to repair the crack, was not unreasonable (Caloroso, at 923). That is not the same situation in the Brown case: a one-inch rise and a one-inch gap are not inevitable.

In Plaintiff Judy Brown's case, she submits that it was not only the rise in height of the pavement (which cannot be defined as a mere crack) in conjunction with the gap in between the pavers constituted a dangerous sidewalk defect, and one which caused her to trip and fall.

To further distinguish Caloroso from the instant case, in that case, the fall occurred on the walkway owned by a homeowner; whereas, in sharp contract, Plaintiff Judy Brown trip and fall accident occurred on a shopping Mall walkway. Certainly it is reasonable for one to expect that a shopping Mall, like Defendant Universal Mall, has a special duty toward its patrons, like Plaintiff, to detect and repair defects on its property that could foreseeably harm them. Civil Code Section 1714 clearly mandates that every person has a duty to manage his property so as not to cause an injury to persons. See also Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97.

Continue reading "Major Crack In Mall Pavement Causes Injury To Sacramento Woman, Part 5 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

In its brief, Defendant cites the case of Kasparian v. Avalonbay Communities. Inc. (2007) 156 Cal.App. 4th 11, 66 Cal.Rptr. 3d 885 of the proposition that a court may decide that a sidewalk defect is trivial. The Kasparian decision is instructive. There the plaintiff sued his landlord for negligence and premises liability, alleged that she tripped and fell over a recessed drain on a walkway. The trial court granted the defendant's motion for summary judgment on the ground that the recessed drain was, as a matter of law, an obvious and trivial defect, negating any duty of care by the defendant-landlord. The tenant-plaintiff appealed, and the court of appeal reversed the judgment on the ground that reasonable minds could differ based upon reviewing the photographs depicting the defective condition of the walkway, where the defect was trivial or open, or obvious.

Likewise, in the instant case, reasonable minds could differ on whether the combination of the upraised portion of pavers with a gap between the sections of pavers constitutes a dangerous property condition, or a trivial defect. Remember, we have two defects in the sidewalk where Plaintiff Judy Brown tripped and fell.

Defendant also cites the case of Caloroso v. Hathaway (2004) 122 Cal.App. 4th 922, 19 Cal.Rptr. 3d 254 in its brief, for the proposition that the defective condition in the instant case was trivial as a matter of law. However, Caloroso is distinguishable on its facts. There, the issue was whether a slight crack in a walkway was a trivial defect.

Continue reading "Woman Suffers Serious Injuries After Fall At Sacramento Mall, Part 4 of 9" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this trip and fall/personal injury case and its proceedings.)

Universal Mall argues that its summary judgment motion should be granted because Plaintiff cannot prove that it owed a duty of care toward her, because the sidewalk defect which caused her to trip and fall was "trivial in nature." In support of that assertion, it contends that a one-half inch rise in the sidewalk is a trivial defect; and that as such, it did not owe a duty to the Plaintiff to either cure the defect or warn her of its existence.

One of the problems associated with Defendant's argument is its description of the defective condition of the sidewalk. It argues that the defect was solely a one-half inch difference between the heights of the pavers (sections) of the sidewalk. That is not true. The defects consisted of a 1" rise in height, and an approximate 1" gap” between the pavers on the sidewalk (Supported by the Declarations of Judy Brown, Paragraphs 5-6 and Kenneth Brown, Paragraph 8; see also the photo exhibits which show the rise in height and the gap, attached as Exhibits 1 and 2 to Declarations of Judy Brown and Kenneth Brown).

Defendant Universal Mall argues that a one half inch rise in the paver on the sidewalk is so trivial that reasonable minds would not differ as to this being only a trivial defect. As explained above, the defects were a 1" gap and a 1" rise in height of the sidewalk paver. Defendant omits any reference to the gap in the pavers, choosing, rather, to describe the defect as only an upraised portion of sidewalk. Further, and importantly, whether the defects were trivial or substantial in nature in one which a jury can decide in this case. As held in Johnson v. City of Palo Alto (1962) 199 Cal.App2d 148, 152, 18 Cal Rptr, 484, it is up to a jury to decide whether or not the condition of a sidewalk is dangerous or defective, or merely trivial.

Continue reading "Sacramento Mall Owner Responsible For Sidewalk Trip And Fall, Part 3 of 9" »